Legal Document: Keyman, Inc. v. Gromedico, Llc, Baldwinsville Family Dental, Pllc, John Does 1-10

On July 24, 2023 a AFFIDAVIT OR AFFIRMATION IN REPLY (Motion #1) - Reply Affirmation of Daniel R. Norton was filed involving a dispute between Keyman, Inc., and Baldwinsville Family Dental, Pllc, Gromedico, Llc, John Does 1-10, for Real Property - Other (Foreclose Mechanics Lien) in the District Court of Onondaga County.

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FILED: ONONDAGA COUNTY CLERK 10/31/2023 05:25 PM INDEX NO. 007672/2023
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 10/31/2023

STATE OF NEW YORK
SUPREME COURT : COUNTY OF ONONDAGA

KEYMAN, INC.,
Plaintiff,

-against-
AFFIRMATION
GROMEDICO, LLC, BALDWINSVILLE
Index No. 007672/2023
FAMILY DENTAL, PLLC, and JOHN DOES 1-
10,

Defendants.

DANIEL R. NORTON, an attorney duly licensed to practice in the State of New York,

affirms the truth of the following statements under the penalty of perjury and pursuant to Rule

2106 of the Civil Practice Law and Rules:

1. I am a partner at Hinman, Howard & Kattell, LLP, attorneys for defendants,

Gromedico, LLC (“Gromedico”) and Baldwinsville Family Dental, PLLC (“BFD”). As such, I am

familiar with the facts and circumstances set forth herein.

2. I respectfully submit this Reply Affirmation in further support of defendants’

motion for an Order:

a. Pursuant to CPLR 3211(a)(1), dismissing plaintiff’s Verified Complaint

and each and every cause of action contained therein on the grounds that

defendants possess a complete defense to all of plaintiff’s causes of action

founded upon documentary evidence;

b. Pursuant to N.Y. Lien Law § 59, dismissing plaintiff’s First Cause of Action

and, further, cancelling and vacating the Notice of Lien filed by plaintiff on

July 29, 2020;

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c. Pursuant to CPLR 3211(a)(8), dismissing plaintiff’s Verified Complaint, on

the grounds that the Court does not have jurisdiction over the person of

Gromedico or BFD; and

d. Granting such additional relief as the Court may deem just and proper.

3. I also submit this Reply Affirmation in reply to the papers submitted by plaintiff,

Keyman, Inc. (“Keyman”), in opposition to the foregoing motion.

THE COURT CAN, AND SHOULD, CONSIDER CHECKS
AND LEDGERS AS DOCUMENTARY EVIDENCE

4. Plaintiff’s counsel argues that checks and ledgers are generally not considered

documentary evidence under CPLR 3211(a)(1). (NYSCEF Doc. No. 27 at ¶ 3, 5).

5. The rule governing documentary evidence is not as broad as plaintiff’s counsel

claims.

6. By their very nature, checks and ledgers are documentary evidence.1

7. As documentary evidence, checks and ledgers can, and should, be considered as

such within the context of CPLR 3211(a)(1).

8. This is especially so in a case like this one, where the plaintiff’s pleadings squarely

place payment as the issue before the Court.

9. Without question, if defendants could not produce checks and ledgers, plaintiffs’

counsel would be arguing that there was no documentary evidence proving payment from BFD to

Keyman.

1
What else could they be?

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THERE IS NOTHING AMBIGUOUS ABOUT THE CHECKS
AND THE LEDGER PRESENTLY BEFORE THE COURT

10. After arguing that checks and ledgers are not documentary evidence, plaintiff’s

counsel argues that the checks appearing in Exhibit 1 to the Affidavit of Michelle Kielbasinski

(NYSCEF Doc. No. 22), and the ledger appearing in Exhibit 2 to the Affidavit of Michelle

Kielbasinski (NYSCEF Doc. No. 23), are ambiguous. (See NYSCEF Doc. No. 27 at 7-10).

11. There is nothing ambiguous about the checks appearing in Exhibit 1 to the Affidavit

of Michelle Kielbasinski. They are all checks made payable to Keyman.

12. Notably, Keyman does not deny that it received the checks appearing in Exhibit 1

to the Affidavit of Michelle Kielbasinski, nor does it deny cashing the checks appearing in Exhibit

1 to the Affidavit of Michelle Kielbasinski.

13. Moreover, Ms. Cummings’s affidavit implicitly acknowledges that all of the checks

appearing in Exhibit 1 to the Affidavit of Michelle Kielbasinski were paid by BFD to Keyman.

(See NYSCEF Doc. No. 28 at 13, 15-22).

14. There is likewise nothing ambiguous about the general ledger.

15. As Kimber Cummings explains, Keyman is “a construction contracting company

owned by . . . Wayne Cummings” that was hired “to renovate and remodel the offices used by

BFD . . . ”. (NYSCEF Doc. No. 28 at ¶ 8).

16. Notwithstanding plaintiff’s claims to the contrary, one would expect the general

ledger to use the following words in reference to payments made to an entity like Keyman:

“remodel”, “construction”, “repairs and maintenance”, “maintenance”, and “leasehold

improvements”.

17. There is, as a result, nothing ambiguous about the words used in the ledger to

describe the checks paid to Keyman.

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IN THE ABSENCE OF AN AFFIDAVIT FROM KEYMAN,
THE COURT SHOULD DECLINE TO ACCEPT
PLAINTIFF’S EXPLANATION FOR THE PAYMENTS IT
RECEIVED FROM BFD

18. Neither an officer, nor a director, of Keyman denies that it received the checks

appearing in Exhibit 1 to the Affidavit of Michelle Kielbasinski for the purposes listed in the ledger

that appears in Exhibit 2 to the Affidavit of Michelle Kielbasinski.

19. Rather than have an officer or director of Keyman explain the checks it received

from BFD, non-party Kimber Cummings does so.

20. Ms. Cummings explains the checks paid to Keyman by BFD based upon the fact

that she managed and operated the business activities of BFD during the periods of time relevant

to this action. (See NYSCEF Doc. No. 28 at ¶ 5).

21. In her affidavit, Ms. Cummings appears to be admitting that she failed to properly

account for payments made by BFD to Keyman. For, in her affidavit, Ms. Cummings provides

what she claims is a table that lists the true purpose for sixty eight payments from BFD to Keyman.

(See NYSCEF Doc. No. 28 at ¶ 15)

22. The table below lists those sixty eight payments, the purpose for those payments as

accounted for in BFD’s ledger, and the purpose for those payments as claimed now by Ms.

Cummings:

Date of Check Amount of KCummings
Ledger Purpose
Check Number Check Purpose
1 3/11/2016 5221 $1,750.00 Construction Mechanic’s lien
2 6/28/2016 5756 $4,985.16 Matched Loan
3 7/5/2016 5341 $12,000.00 Remodel Mechanic’s Lien
Miscellaneous
7/18/2016 5357 $8,000.00 Remodel
4 supplies
5 9/17/2016 5414 $15,000.00 Remodel Matched Draw
6 10/11/2016 5427 $1,800.00 Remodel Miscellaneous work
7 11/18/2016 5454 $7,500.00 Remodel Matched Draw

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8 2/1/2017 5472 $10,000.00 Remodel Matched Draw
9 2/20/2017 5484 $17,500.00 Remodel Matched Draw
10 3/22/2017 5503 $11,000.00 Remodel Matched Draw
11 3/22/2017 5517 $20,000.00 Remodel Matched Draw
12 5/2/2017 5529 $28,000.00 Remodel Matched Draw
13 6/14/2017 5537 $18,500.00 Remodel Mechanic’s Lien
14 6/23/2017 5548 $40,000.00 Matched Draw
15 7/25/2017 5558 $23,000.00 Remodel Matched Draw
16 7/25/2017 5567 $575.00 Remodel Mechanic’s Lien
17 8/31/2017 5575 $40,000.00 Remodel Matched Draw
18 9/12/2017 5592 $28,500.00 Remodel Matched Draw
19 10/19/2017 5605 $33,500.00 Remodel Matched Draw
20 11/20/2017 5627 $25,000.00 Remodel Matched Draw
21 11/20/2017 5624 $5,200.00 Remodel Matched Loan
Loan through m
11/30/2017 5639 $5,042.31 Matched Loan
22 and t
Leasehold
11/30/2017 5643 $20,000.00 Matched Draw
23 Improvements
Leasehold
1/30/2018 5658 $5,055.61 Matched Loan
24 Improvements
Repairs &
2/27/2018 5681 $4,994.47 Matched Loan
25 Maintenance
Matched Draw
3/5/2018 5687 $15,000.00 Remodel
26 (modified)
Loan through m
3/29/2018 5701 $4,993.78 Matched Loan
27 and t
28 4/5/2018 5707 $25,000.00 Remodel Matched Draw
Loan through m
4/27/2018 5717 $5,024.26 Matched Loan
29 and t
Repairs &
5/30/2018 5737 $20,000.00 Mechanic’s Lien
30 Maintenance
31 5/31/2018 5742 $4,976.48 M and t loan Matched Loan
Repairs &
5/31/2018 5744 $32,000.00 Matched Draw
32 Maintenance
Repairs &
6/1/2018 5748 $5,000.00 Matched Draw
33 Maintenance
34 7/30/2018 5778 $4,950.00 Construction Matched Loan
35 8/27/2018 5794 $7,500.00 Management fee Matched Draw
Match m and to
8/29/2018 5795 $4,950.00 Matched Loan
36 loan
37 10/1/2018 5816 $5,000.00 Construction Matched Loan

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38 10/29/2018 5836 $4,909.50 Loan match Matched Loan
Loan through m
11/27/2018 5853 $4,899.68 Matched Loan
39 and t
Leasehold
12/27/2018 5870 $4,899.68 Matched Loan
40 Improvements
Leasehold
1/28/2019 5883 $4,868.49 Matched Loan
41 improvements
Leasehold
2/28/2019 5899 $4,815.86 Matched Loan
42 Improvements
Leasehold
3/19/2019 5911 $4,981.15 Matched Loan
43 improvements
44 3/20/2019 1002 $6,500.00 Mechanic’s Lien
Leasehold
3/21/2019 5913 $980.00 Mechanic’s Lien
45 Improvements
46 4/1/2019 1004 $4,432.18 Matched Loan
Leasehold
4/15/2019 5923 $4,981.15 Matched Loan
47 Improvements
Leasehold
4/29/2019 5930 $4,815.86 Matched Loan
48 Improvements
Leasehold
5/28/2019 5940 $4,900.00 Mechanic’s Lien
49 Improvements
50 6/6/2019 1022 $5,000.00 Mechanic’s Lien
51 6/24/2019 1025 $10,000.00 Mechanic’s Lien
Leasehold
6/24/2019 5958 $4,900.00 Mechanic’s Lien
52 Improvements
Leasehold
7/22/2019 5978 $4,900.00 Matched Loan
53 Improvements
54 8/5/2019 1034 $10,000.00 Mechanic’s Lien
Leasehold
8/16/2019 5988 $30,000.00 Mechanic’s Lien
55 Improvements
Leasehold
8/24/2019 5996 $4,950.00 Matched Loan
56 Improvements
57 9/19/2019 1042 $5,000.00 Matched Loan
Leasehold
9/30/2019 6020 $4,900.00 Matched Loan
58 Improvements
Leasehold
10/28/2019 6039 $4,950.00 Matched Loan
59 Improvements
Payment for
10/30/2019 1053 $60,000.00
60 Auburn
Leasehold
11/4/2019 6046 $450.00 Mechanic’s Lien
61 Improvements
Leasehold
11/25/2019 6063 $4,950.00 Matched Loan
62 Improvements

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Leasehold
12/21/2019 6089 $4,950.00 Matched Loan
63 Improvements
64 1/20/2020 6112 $350.00 Mechanic’s Lien
65 1/28/2020 6125 $2,500.00 Matched Draw
66 1/28/2020 6123 $450.00 Mechanic’s Lien
67 2/22/2020 6146 $4,950.00 Matched Loan
Matched Car
2/22/2020 6147 $1,314.82
68 Payment
Total: $741,795.44

23. As the Court can see, Ms. Cummings claims that only sixteen of the payments made

to Keyman by BFD between March 2016 and February 2020 were for work associated with

Keyman’s mechanic’s lien. (NYSCEF Doc. No. 28 at ¶ 15).

24. Ms. Cummings claims that twenty eight payments from BFD to Keyman, totaling

$138,325.62, were matched loan payments made for her personal benefit. The Court will note

that, of these twenty eight payments, four do not appear on the ledger provided in defendants’

motion papers. Of the remaining twenty four payments, Ms. Cummings originally accounted for

one of them as made for the purpose of a “Remodel”; seven of them as made for the purpose of

“Loan through m and t”; thirteen of them as made for the purpose of “Leasehold Improvements”;

one of them for “Repairs”; and two of them for “construction”.

25. Ms. Cummings further claims that twenty payments from BFD to Keyman, totaling

$406,000.00, were matched draw payments made for her personal benefit. The Court will note

that, of these twenty payments, two do not appear on the ledger provided in defendants’ motion

papers. Of the remaining eighteen payments, Ms. Cummings originally accounted for fourteen of

them as made for the purpose of a “Remodel”; one of them as made for “Leasehold

Improvements”; two of them as made for “Repairs”; and one of them as made for a “Management

fee”.

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26. In sum and substance, Keyman’s argument appears to be that, since the wife of the

owner of Keyman, Kimber Cummings, knowingly created, or knowingly oversaw the creation of,

inaccurate and possibly falsified business documents during the period of time that she worked at

BFD, the Court cannot rely upon BFD’s business documents in dismissing this action.

27. This argument is entirely self-serving, especially given the lack of any factual,

competent evidentiary support for it, and all the moreso given the absence of an affidavit from an

owner, officer or director of Keyman stating that it accepted payments from BFD for the purpose

claimed by Ms. Cummings.

28. Since Keyman’s argument in opposition to defendants’ motion to dismiss is

self-serving, lacking in evidentiary support, and unsupported by an affidavit from an owner,

director or officer of Keyman, the Court should reject that argument and grant defendants’ motion.

THE BALDWINSVILLE FAMILY DENTAL
PARTNERSHIP AGREEMENT IS A RED HERRING THAT
THE COURT SHOULD DISREGARD AS IRRELEVANT

29. The General Partnership Agreement pertaining to Baldwinsville Family Dental that

appears as Exhibit A to the Affidavit of Kimber Cummings (NYSCEF Doc. No. 29) is a red

herring.

30. If the Baldwinsville Family Dental Partnership owned Baldwinsville Family

Dental, PLLC, as Ms. Cummings claims in her affidavit, then there would be documentary

evidence to support this claim.

31. The Court will note, Keyman does not provide any documentation evidencing Ms.

Cummings’s claim that the Baldwinsville Family Dental Partnership owns Baldwinsville Family

Dental, PLLC.

32. That is because no such documentary evidence exists.

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33. Not only is there no factual basis for Ms. Cummings’s claim that the Baldwinsville

Family Dental Partnership owns Baldwinsville Family Dental, PLLC, there is also no legal basis

for that claim.

34. Section 2 of the Partnership Law requires that all partners of a professional

partnership that provides dental services be licensed to practice dentistry. N.Y. PARTNERSHIP LAW

§ 2 (2023).

35. Similarly, Section 1203 of the Limited Liability Company Law requires that each

member of a limited liability company formed to provide dental services be licensed to practice

dentistry. N.Y. LIMITED LIABILITY COMPANY LAW § 1203 (2023).

36. Since Ms. Cummings is not a dentist, it follows that the Baldwinsville Family

Dental Partnership cannot own a dental practice or a membership interest in a professional limited

liability company operating as a dental practice.

CONCLUSION

37. For all of the foregoing reasons, defendants respectfully request that the Court enter

an Order granting defendants’ motion.

Dated: October 31, 2023 /s/ Daniel R. Norton
Binghamton, New York _________________________________
Daniel R. Norton, Esq.
Hinman, Howard & Kattell LLP
Attorneys for Defendants
Office and Post Office Address
80 Exchange Street
P.O. Box 5250
Binghamton, NY 13902
(607) 723-5341
dnorton@hhk.com

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WORD COUNT SPECIFICATION CERTIFICATION

The undersigned hereby certifies that the foregoing Affirmation complies with the word
count limit set forth in 22 NYCRR § 202.8-b and that the total number of words in the foregoing
Affirmation is 2,190 as calculated by the word processing system used to prepare the foregoing
Affirmation.

Dated: October 31, 2023 /s/ Daniel R. Norton
Binghamton, New York ___________________________________
Daniel R. Norton, Esq.
HINMAN, HOWARD & KATTELL, LLP
Attorneys for Defendants
80 Exchange Street
P.O. Box 5250
Binghamton, New York 13902-5250
Telephone: (607) 723-5341
dnorton@hhk.com

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Judge

Hon. Danielle M Fogel Track Judge’s New Case

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Document Filed Date

October 31, 2023

Case Filing Date

July 24, 2023

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