Preview
FILED: SUFFOLK COUNTY CLERK 03/19/2024 04:41 PM INDEX NO. 629897/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/19/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
----------------X
EMILY MAY,
Plaintiff, Index No. 629897/2023
-against-
STEPHEN and MINDY BARANOFF,
Defendants.
-----------------X
DEFENDANTS' MEMORANDUM OF LAW
IN SUPPORT OF DISMISSAL
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PRELIMINARY STATEMENT
This memorandum of law is respectfully submitted on behalf of Defendants Steven
Baronoff (incorrectly sued herein as "Stephen Baranoff') and Mindy Baronoff (incorrectly sued
herein as "Mindy Baranoff') (collectively referred to herein as the "Baronoffs") in support of their
motion to dismiss the Complaint in this action pursuant to CPLR § § 3211 (a)(l ), (7) and (1 O), as
well as CPLR § l00l(a).
Plaintiff, the owner of premises known as 46 Harbor Hill Drive, Lloyd Harbor, alleges that
the Baronoffs, as owners of 49 Harbor Hill Drive, Lloyd Harbor (the "Subject Premises"), erected
a fence around the perimeter of the Subject Premises and that such fence violates the setback
requirements imposed by paragraphs "D and "K" of the Declarations of Conditions, Covenants,
Restrictions, Easements and Charges (the "Covenants and Restrictions") recorded with the Office
of the Suffolk County Clerk at Liber 3253, Pages 44-49. Plaintiff seeks judgment directing the
Baronoffs to relocate the fence so that it complies with the cited Covenants and Restrictions.
Respectfully, the Complaint must be dismissed.
First and foremost, the documentary evidence submitted on this motion irrefutably
establishes that the Subject Premises are not subject to the setback requirements set forth in the
Covenants and Restrictions relied upon by Plaintiff. To the contrary, the Subject Premises have
been expressly exempted from such setback requirements.
Second, the documentary evidence establishes that the Subject Premises are not even
owned by the Baronoffs. To the contrary, the deed to the property unequivocally establishes that
the Subject Premises are owned by 49 Harbor Hill Drive, LLC. Moreover, though the Complaint
contains no such allegations, to the limited extent the Baronoffs are members, managers, or agents
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of 49 Harbor Hill Drive, LLC, § 609(a) of the Limited Liability Company Law insulates them
from personal liability for the obligations of 49 Harbor Hill Drive, LLC.
Finally, 49 Harbor Hill Drive, LLC, as the owner of the subject premises, is a necessary
party without whom this action may not proceed.
For all or any of the foregoing reasons, this action must be dismissed.
STATEMENT OF RELEVANT FACTS
Plaintiff alleges that she and her husband are the owners of real property known as 46
Harbor Hill Drive, Lloyd Harbor, New York (NYSCEF Doc. 1, 1).
Plaintiff incorrectly alleges that on or about April 29, 2022, the Baronoffs took title to the
Subject Premises (Id., 1 2). Documentary evidence refutes that allegation (see Exhibit "A"). 49
Harbor Hill Drive, LLC took title to the Subject Premises on April 29, 2022-not the Baronoffs.
Plaintiff alleges that the Baronoffs built a fence around the entire perimeter of the Subject
Premises (NYSCEF Doc. 1, 1 2) and that the fence violates certain Covenants and Restrictions
recorded with the Suffolk County Clerk's Office at Liber 3253, p. 48, paragraph (K) and Liber
3253, p. 45, paragraph (D) (NYSCEF Doc. 1, 2, 4-6).
Paragraph (K) provides that "no fence or wall of any kind for any purpose other than a
permanent wall commonly termed 'retaining wall' shall be erected, placed or permitted to remain
upon any plot nearer to any street than the building setback as hereinabove provided for (NYSCEF
Doc. 1,4).
Paragraph (D) provides that "[e]very principal structure on each plot shall not be erected
closer to any road than 75 feet, nor within 40 feet of any side or rear line" da., 5).
The documentary evidence submitted on this motion includes an Indenture dated
September 2, 1957 and granted by Huntington Acres, Inc. that was recorded at Liber 4357, pages
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489-490 and relates to the Subject Premises (Exhibit "D"). Referencing the Covenants and
Restrictions recorded at Liber 3253, Page 44 (Exhibit "C"), the Indenture exempts the Subject
Premises from the setback requirements imposed by paragraph D, providing in relevant part as
follows:
NOW THEREFORE, the party of the first part [Huntington Acres,
Inc.] in consideration of the sum of One ($1.00) Dollar and other
good and valuable consideration, receipt of which is hereby
acknowledged, solelyfor the premises herein described, does hereby
annul and cancel those parts of the above Declaration of
Conditions, Covenants, Restrictions and Easements as set forth in
paragraph D of Liber 3253 page 44 of the Suffolk County Clerk's
Office and as set forth in paragraphs C-1, C-2,3, 3Aand 4D of Liber
3209 page 318 of the Suffolk County Clerk's Office.
(emphasis added).
POINT I
DOCUMENTARY EVIDENCE DEFEATS THIS ACTION
A motion to dismiss based upon documentary evidence will succeed where such evidence
"utterly refute(s) the plaintiff's factual allegations, conclusively establishing a defense as a matter
of law." Victory State Bank v. Emba Hylan, LLC, 169 A.D.3d 963, 965 (2d Dep't 2019). As
explained in Bath & Twenty, LLC v. Fed. Sav. Bank, 198 A.D.3d 855, 156 (2d Dep't 2021):
To be considered documentary, evidence must be unambiguous and
of undisputed authenticity, that is, it must be essentially unassailable
(see JPMorgan Chase Bank, NA. v. Klein, 178 A.D.3d 788, 790,
113 N.Y.S.3d 741). 'Judicial records, as well as documents
reflecting out-of-court transactions such as mortgages, deeds,
contracts, and any other papers, the contents of which are essentially
undeniable, would qualify as documentary evidence in the proper
case' (id. at 790, 113 N.Y.S.3d 741, quoting Eisner v. Cusumano
Constr., Inc., 132 A.D.3d 940, 941, 18 N.Y.S.3d 683).
The documentary evidence relied upon by the Baronoffs to support their motion for
dismissal consists of: (i) the deed pursuant to which 49 Harbor Hill Drive, LLC took title to the
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Subject Premises on April 29, 2022, which deed was recorded with the Suffolk County Clerk's
Office at Liber D000 13160, Page 592 (Exhibit "A"); (ii) the Covenants and Restrictions recorded
with the Suffolk County Clerk's Office at Liber 3209 Page 318 (Exhibit "B); the Covenants and
Restrictions recorded with the Suffolk County Clerk's Office at Liber 3253 Page 44 (Exhibit "C");
and the Indenture related to the Subject Premises, recorded with the Suffolk County Clerk's Office
at Liber 4357 Page 489 (Exhibit "D").
For all or any of the reasons set forth below, the foregoing documentary evidence
establishes the Baronoff s right to judgment dismissing this action as a matter of law.
POINT II
THE SETBACK REQUIREMENTS DO NOT APPLY TO THE SUBJECT PREMISES
The Complaint is solely predicated upon allegations that the fence erected at the perimeter
of the Subject Premises violates certain Covenants and Restrictions imposed by Huntington Acres,
Inc. and recorded with the Suffolk County Clerk's Office at Liber 3253, p. 48, paragraph (K) and
Liber 3253, p. 45, paragraph (D).
Paragraph (K) of the Covenants and Restrictions provides that "no fence or wall of any
kind for any purpose other than a permanent wall commonly termed 'retaining wall' shall be
erected, placed or permitted to remain upon any plot nearer to any street than the building setback
as hereinabove provided for (NYSCEF Doc. 1, ,r 4).
Paragraph (D) provides that "[e]very principal structure on each plot shall not be erected
closer to any road than 75 feet, nor within 40 feet of any side or rear line." (Id., ,r 5)1.
'To the extent applicable to any property subject to the setback requirements contained in the Covenants and
Restrictions (and the Subject Premises are not), the 40-foot setback required by Paragraph (D) would only apply to a
"principal structure." A fence is not a principal structure. Moreover, the setback requirement for a fence would only
apply to that section of the fence that is located within 75 feet of the street.
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The documentary evidence submitted on this motion includes an Indenture granted by
Huntington Acres, Inc. which is dated September 2, 1957 and recorded at Liber 4357, pages 489-
490. The Indenture applies specifically to the Subject Premises (Exhibit "D"). Referencing the
Covenants and Restrictions imposed at Liber 3253, Page 44 (Exhibit "C"), the Indenture expressly
exempts the Subject Premises from the setback requirements relied upon in the Complaint,
providing in relevant part as follows:
NOW THEREFORE, the party of the first part [Huntington Acres,
Inc.] in consideration of the sum of One ($1.00) Dollar and other
good and valuable consideration, receipt of which is hereby
acknowledged, solelyfor the premises herein described, does hereby
annul and cancel those parts of the above Declaration of
Conditions, Covenants, Restrictions and Easements as set forth in
paragraph D of Liber 3253 page 44 of the Suffolk County Clerk's
Office and as set forth in paragraphs C-1, C-2, 3, 3Aand 4D of Liber
3209 page 318 of the Suffolk County Clerk's Office.
(emphasis added).
Because the documentary evidence irrefutably establishes that the Subject Premises are
not subject to the setback requirements relied upon by Plaintiff, the Complaint fails as a matter of
law and must be dismissed.
POINT III
THE BARONOFFS ARE NOT LIABLE FOR THE
OBLIGATIONS OF THE LIMITED LIABILITY COMPANY THAT
OWNS THE SUBJECT PREMISES
The arguments that follow are superfluous given that Plaintiff's claim fails as a matter of
law in the face of the Indenture that exempts the Subject Premises from the setback requirements
imposed by the Covenants and Restrictions.
In any event, Plaintiff alleges that the Baronoffs purchased the Subject Premises on April
29, 2022 (NYSCEF Doc. 1, ,r 2). However, the deed reflecting that April 29, 2022 transaction
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irrefutably establishes that title in the Subject Premises resides with 49 Harbor Hill Drive, LLC
and has since April 29, 2022 (see Exhibit "A").
The Complaint does not reference 49 Harbor Hill Drive, LLC. Nor does it allege that the
Baronoffs are members, managers or agents of 49 Harbor Hill Drive, LLC. However, even if it
did, the Baronoffs would be statutorily insulated from any personal liability for the debts,
obligations, or liabilities ofthat limited liability company. A limited liability company is a separate
legal entity from its members, and a member of a limited liability company cannot be held liable
for the company's obligations by virtue of his or her status as a member thereof. See, Singh v.
Nadlan, LLC, 171 A.D.3d 1239, 1240 (2d Dep't 2019); Collins v. E-Magine, LLC, 291 A.D.2d
350, 351 (1 Dep't 2002) (members and managers of "a limited liability company under New
York's Limited Liability Company Law are expressly exempt from personal responsibility for the
obligations of [the company]).
In that regard, Section 609(a) of the Limited Liability Company Law provides as follows:
Neither a member of a limited liability company, a manager of a
limited liability company managed by a manager or managers nor
an agent of a limited liability company (including a person having
more than one such capacity) is liable for any debts, obligations or
liabilities of the limited liability company or each other, whether
arising in tort, contract or otherwise, solely by reason of being such
member, manager or agent or acting (or omitting to act) in such
capacities or participating (as an employee, consultant, contractor or
otherwise) in the conduct of the business of the limited liability
company.
Because the documentary evidence establishes that the Subject Premises are owned by a
limited liability company, and the Baronoffs, even if alleged to be members, managers, or agents
of such limited liability company, have no personal liability for the debts, obligations or liabilities
of that limited liability company, this action must be dismissed.
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POINT IV
PLAINTIFF FAILED TO JOIN A NECESSARY PARTY
Section 1001 (a) of the CPLR provides in relevant part that "[p]ersons who ought to be
parties if complete relief is to be accorded between the persons who are parties to the action or
who might be inequitably affected by a judgment in the action shall be made plaintiffs or
defendants." Because 49 Harbor Hill Drive, LLC, as the owner of the Subject Premises, may be
inequitably affected by a judgment in this action, it is a necessary party that should have been
joined herein. See, e.g., Phillips v. Town ofStony Point, 104 A.D.2d 1033, 481 N.Y.S.2d 10, 10
(1984) ("Because the declaratory judgment dated July 8, 1982 affects the rights of the [property
owners], they should have been joined in the action (see CPLR 1001, subd. [a])."). Plaintiffs
failure to join the property owner as a defendant requires dismissal of this action. See, e.g., Katz
v. Vill. ofSouthampton, 244 A.D.2d 461,462 (2d Dep't 1997) (holding that the non-joinder of a
necessary party requires dismissal of the Complaint); Ayres v. New York State Com'r of Tax'n &
Fin., 252 A.D.2d 808, 81 O (3d Dep't 1998) (holding that the non-joinder of a necessary party
requires dismissal of the Complaint).
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CONCLUSION
For all the foregoing reasons, Defendants respectfully request that this action be dismissed
in its entirety.
Dated: Garden City, New York
March 19, 2023
Respectfully submitted,
LC
Attorneys for Respondents
1010 Franklin Avenue, Suite 200
Garden City, New York 11530
(516) 267-6300; rfinkel@bsk.com
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CERTIFICATION
RICHARD S. FINKEL, an attorney duly admitted to practice law in the Courts of the State
of New York, affirms under penalty that I am a member of the law firm of Bond Schoeneck &
King, PLLC, attorneys for Defendants in this proceeding; that I am the attorney primarily
responsible for preparing and filing this Memorandum of Law; and that the text of the foregoing
Memorandum of Law, exclusive of cover, tables, and title blocks, is 2, 107 words, and therefore
complies with the word-count limit established by NYCRR § 20~
.8-b.
Dated: March 19, 2024
Garden City, New York
Richard S. Finkel
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Preview
FILED: SUFFOLK COUNTY CLERK 03/19/2024 04:41 PM INDEX NO. 629897/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/19/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ----------------X EMILY MAY, Plaintiff, Index No. 629897/2023 -against- STEPHEN and MINDY BARANOFF, Defendants. -----------------X DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF DISMISSAL 17532222.1 3/19/2024 1 of 10 FILED: SUFFOLK COUNTY CLERK 03/19/2024 04:41 PM INDEX NO. 629897/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/19/2024 PRELIMINARY STATEMENT This memorandum of law is respectfully submitted on behalf of Defendants Steven Baronoff (incorrectly sued herein as "Stephen Baranoff') and Mindy Baronoff (incorrectly sued herein as "Mindy Baranoff') (collectively referred to herein as the "Baronoffs") in support of their motion to dismiss the Complaint in this action pursuant to CPLR § § 3211 (a)(l ), (7) and (1 O), as well as CPLR § l00l(a). Plaintiff, the owner of premises known as 46 Harbor Hill Drive, Lloyd Harbor, alleges that the Baronoffs, as owners of 49 Harbor Hill Drive, Lloyd Harbor (the "Subject Premises"), erected a fence around the perimeter of the Subject Premises and that such fence violates the setback requirements imposed by paragraphs "D and "K" of the Declarations of Conditions, Covenants, Restrictions, Easements and Charges (the "Covenants and Restrictions") recorded with the Office of the Suffolk County Clerk at Liber 3253, Pages 44-49. Plaintiff seeks judgment directing the Baronoffs to relocate the fence so that it complies with the cited Covenants and Restrictions. Respectfully, the Complaint must be dismissed. First and foremost, the documentary evidence submitted on this motion irrefutably establishes that the Subject Premises are not subject to the setback requirements set forth in the Covenants and Restrictions relied upon by Plaintiff. To the contrary, the Subject Premises have been expressly exempted from such setback requirements. Second, the documentary evidence establishes that the Subject Premises are not even owned by the Baronoffs. To the contrary, the deed to the property unequivocally establishes that the Subject Premises are owned by 49 Harbor Hill Drive, LLC. Moreover, though the Complaint contains no such allegations, to the limited extent the Baronoffs are members, managers, or agents 17532222.1 3/19/2024 2 of 10 FILED: SUFFOLK COUNTY CLERK 03/19/2024 04:41 PM INDEX NO. 629897/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/19/2024 of 49 Harbor Hill Drive, LLC, § 609(a) of the Limited Liability Company Law insulates them from personal liability for the obligations of 49 Harbor Hill Drive, LLC. Finally, 49 Harbor Hill Drive, LLC, as the owner of the subject premises, is a necessary party without whom this action may not proceed. For all or any of the foregoing reasons, this action must be dismissed. STATEMENT OF RELEVANT FACTS Plaintiff alleges that she and her husband are the owners of real property known as 46 Harbor Hill Drive, Lloyd Harbor, New York (NYSCEF Doc. 1, 1). Plaintiff incorrectly alleges that on or about April 29, 2022, the Baronoffs took title to the Subject Premises (Id., 1 2). Documentary evidence refutes that allegation (see Exhibit "A"). 49 Harbor Hill Drive, LLC took title to the Subject Premises on April 29, 2022-not the Baronoffs. Plaintiff alleges that the Baronoffs built a fence around the entire perimeter of the Subject Premises (NYSCEF Doc. 1, 1 2) and that the fence violates certain Covenants and Restrictions recorded with the Suffolk County Clerk's Office at Liber 3253, p. 48, paragraph (K) and Liber 3253, p. 45, paragraph (D) (NYSCEF Doc. 1, 2, 4-6). Paragraph (K) provides that "no fence or wall of any kind for any purpose other than a permanent wall commonly termed 'retaining wall' shall be erected, placed or permitted to remain upon any plot nearer to any street than the building setback as hereinabove provided for (NYSCEF Doc. 1,4). Paragraph (D) provides that "[e]very principal structure on each plot shall not be erected closer to any road than 75 feet, nor within 40 feet of any side or rear line" da., 5). The documentary evidence submitted on this motion includes an Indenture dated September 2, 1957 and granted by Huntington Acres, Inc. that was recorded at Liber 4357, pages 17532222.1 3/19/2024 3 of 10 FILED: SUFFOLK COUNTY CLERK 03/19/2024 04:41 PM INDEX NO. 629897/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/19/2024 489-490 and relates to the Subject Premises (Exhibit "D"). Referencing the Covenants and Restrictions recorded at Liber 3253, Page 44 (Exhibit "C"), the Indenture exempts the Subject Premises from the setback requirements imposed by paragraph D, providing in relevant part as follows: NOW THEREFORE, the party of the first part [Huntington Acres, Inc.] in consideration of the sum of One ($1.00) Dollar and other good and valuable consideration, receipt of which is hereby acknowledged, solelyfor the premises herein described, does hereby annul and cancel those parts of the above Declaration of Conditions, Covenants, Restrictions and Easements as set forth in paragraph D of Liber 3253 page 44 of the Suffolk County Clerk's Office and as set forth in paragraphs C-1, C-2,3, 3Aand 4D of Liber 3209 page 318 of the Suffolk County Clerk's Office. (emphasis added). POINT I DOCUMENTARY EVIDENCE DEFEATS THIS ACTION A motion to dismiss based upon documentary evidence will succeed where such evidence "utterly refute(s) the plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Victory State Bank v. Emba Hylan, LLC, 169 A.D.3d 963, 965 (2d Dep't 2019). As explained in Bath & Twenty, LLC v. Fed. Sav. Bank, 198 A.D.3d 855, 156 (2d Dep't 2021): To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable (see JPMorgan Chase Bank, NA. v. Klein, 178 A.D.3d 788, 790, 113 N.Y.S.3d 741). 'Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case' (id. at 790, 113 N.Y.S.3d 741, quoting Eisner v. Cusumano Constr., Inc., 132 A.D.3d 940, 941, 18 N.Y.S.3d 683). The documentary evidence relied upon by the Baronoffs to support their motion for dismissal consists of: (i) the deed pursuant to which 49 Harbor Hill Drive, LLC took title to the 17532222.1 3/19/2024 4 of 10 FILED: SUFFOLK COUNTY CLERK 03/19/2024 04:41 PM INDEX NO. 629897/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/19/2024 Subject Premises on April 29, 2022, which deed was recorded with the Suffolk County Clerk's Office at Liber D000 13160, Page 592 (Exhibit "A"); (ii) the Covenants and Restrictions recorded with the Suffolk County Clerk's Office at Liber 3209 Page 318 (Exhibit "B); the Covenants and Restrictions recorded with the Suffolk County Clerk's Office at Liber 3253 Page 44 (Exhibit "C"); and the Indenture related to the Subject Premises, recorded with the Suffolk County Clerk's Office at Liber 4357 Page 489 (Exhibit "D"). For all or any of the reasons set forth below, the foregoing documentary evidence establishes the Baronoff s right to judgment dismissing this action as a matter of law. POINT II THE SETBACK REQUIREMENTS DO NOT APPLY TO THE SUBJECT PREMISES The Complaint is solely predicated upon allegations that the fence erected at the perimeter of the Subject Premises violates certain Covenants and Restrictions imposed by Huntington Acres, Inc. and recorded with the Suffolk County Clerk's Office at Liber 3253, p. 48, paragraph (K) and Liber 3253, p. 45, paragraph (D). Paragraph (K) of the Covenants and Restrictions provides that "no fence or wall of any kind for any purpose other than a permanent wall commonly termed 'retaining wall' shall be erected, placed or permitted to remain upon any plot nearer to any street than the building setback as hereinabove provided for (NYSCEF Doc. 1, ,r 4). Paragraph (D) provides that "[e]very principal structure on each plot shall not be erected closer to any road than 75 feet, nor within 40 feet of any side or rear line." (Id., ,r 5)1. 'To the extent applicable to any property subject to the setback requirements contained in the Covenants and Restrictions (and the Subject Premises are not), the 40-foot setback required by Paragraph (D) would only apply to a "principal structure." A fence is not a principal structure. Moreover, the setback requirement for a fence would only apply to that section of the fence that is located within 75 feet of the street. 17532222.1 3/19/2024 5 of 10 FILED: SUFFOLK COUNTY CLERK 03/19/2024 04:41 PM INDEX NO. 629897/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/19/2024 The documentary evidence submitted on this motion includes an Indenture granted by Huntington Acres, Inc. which is dated September 2, 1957 and recorded at Liber 4357, pages 489- 490. The Indenture applies specifically to the Subject Premises (Exhibit "D"). Referencing the Covenants and Restrictions imposed at Liber 3253, Page 44 (Exhibit "C"), the Indenture expressly exempts the Subject Premises from the setback requirements relied upon in the Complaint, providing in relevant part as follows: NOW THEREFORE, the party of the first part [Huntington Acres, Inc.] in consideration of the sum of One ($1.00) Dollar and other good and valuable consideration, receipt of which is hereby acknowledged, solelyfor the premises herein described, does hereby annul and cancel those parts of the above Declaration of Conditions, Covenants, Restrictions and Easements as set forth in paragraph D of Liber 3253 page 44 of the Suffolk County Clerk's Office and as set forth in paragraphs C-1, C-2, 3, 3Aand 4D of Liber 3209 page 318 of the Suffolk County Clerk's Office. (emphasis added). Because the documentary evidence irrefutably establishes that the Subject Premises are not subject to the setback requirements relied upon by Plaintiff, the Complaint fails as a matter of law and must be dismissed. POINT III THE BARONOFFS ARE NOT LIABLE FOR THE OBLIGATIONS OF THE LIMITED LIABILITY COMPANY THAT OWNS THE SUBJECT PREMISES The arguments that follow are superfluous given that Plaintiff's claim fails as a matter of law in the face of the Indenture that exempts the Subject Premises from the setback requirements imposed by the Covenants and Restrictions. In any event, Plaintiff alleges that the Baronoffs purchased the Subject Premises on April 29, 2022 (NYSCEF Doc. 1, ,r 2). However, the deed reflecting that April 29, 2022 transaction 17532222.1 3/19/2024 6 of 10 FILED: SUFFOLK COUNTY CLERK 03/19/2024 04:41 PM INDEX NO. 629897/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/19/2024 irrefutably establishes that title in the Subject Premises resides with 49 Harbor Hill Drive, LLC and has since April 29, 2022 (see Exhibit "A"). The Complaint does not reference 49 Harbor Hill Drive, LLC. Nor does it allege that the Baronoffs are members, managers or agents of 49 Harbor Hill Drive, LLC. However, even if it did, the Baronoffs would be statutorily insulated from any personal liability for the debts, obligations, or liabilities ofthat limited liability company. A limited liability company is a separate legal entity from its members, and a member of a limited liability company cannot be held liable for the company's obligations by virtue of his or her status as a member thereof. See, Singh v. Nadlan, LLC, 171 A.D.3d 1239, 1240 (2d Dep't 2019); Collins v. E-Magine, LLC, 291 A.D.2d 350, 351 (1 Dep't 2002) (members and managers of "a limited liability company under New York's Limited Liability Company Law are expressly exempt from personal responsibility for the obligations of [the company]). In that regard, Section 609(a) of the Limited Liability Company Law provides as follows: Neither a member of a limited liability company, a manager of a limited liability company managed by a manager or managers nor an agent of a limited liability company (including a person having more than one such capacity) is liable for any debts, obligations or liabilities of the limited liability company or each other, whether arising in tort, contract or otherwise, solely by reason of being such member, manager or agent or acting (or omitting to act) in such capacities or participating (as an employee, consultant, contractor or otherwise) in the conduct of the business of the limited liability company. Because the documentary evidence establishes that the Subject Premises are owned by a limited liability company, and the Baronoffs, even if alleged to be members, managers, or agents of such limited liability company, have no personal liability for the debts, obligations or liabilities of that limited liability company, this action must be dismissed. 17532222.1 3/19/2024 7 of 10 FILED: SUFFOLK COUNTY CLERK 03/19/2024 04:41 PM INDEX NO. 629897/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/19/2024 POINT IV PLAINTIFF FAILED TO JOIN A NECESSARY PARTY Section 1001 (a) of the CPLR provides in relevant part that "[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants." Because 49 Harbor Hill Drive, LLC, as the owner of the Subject Premises, may be inequitably affected by a judgment in this action, it is a necessary party that should have been joined herein. See, e.g., Phillips v. Town ofStony Point, 104 A.D.2d 1033, 481 N.Y.S.2d 10, 10 (1984) ("Because the declaratory judgment dated July 8, 1982 affects the rights of the [property owners], they should have been joined in the action (see CPLR 1001, subd. [a])."). Plaintiffs failure to join the property owner as a defendant requires dismissal of this action. See, e.g., Katz v. Vill. ofSouthampton, 244 A.D.2d 461,462 (2d Dep't 1997) (holding that the non-joinder of a necessary party requires dismissal of the Complaint); Ayres v. New York State Com'r of Tax'n & Fin., 252 A.D.2d 808, 81 O (3d Dep't 1998) (holding that the non-joinder of a necessary party requires dismissal of the Complaint). 17532222.1 3/19/2024 8 of 10 FILED: SUFFOLK COUNTY CLERK 03/19/2024 04:41 PM INDEX NO. 629897/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/19/2024 CONCLUSION For all the foregoing reasons, Defendants respectfully request that this action be dismissed in its entirety. Dated: Garden City, New York March 19, 2023 Respectfully submitted, LC Attorneys for Respondents 1010 Franklin Avenue, Suite 200 Garden City, New York 11530 (516) 267-6300; rfinkel@bsk.com 17532222.1 3/19/2024 9 of 10 FILED: SUFFOLK COUNTY CLERK 03/19/2024 04:41 PM INDEX NO. 629897/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/19/2024 CERTIFICATION RICHARD S. FINKEL, an attorney duly admitted to practice law in the Courts of the State of New York, affirms under penalty that I am a member of the law firm of Bond Schoeneck & King, PLLC, attorneys for Defendants in this proceeding; that I am the attorney primarily responsible for preparing and filing this Memorandum of Law; and that the text of the foregoing Memorandum of Law, exclusive of cover, tables, and title blocks, is 2, 107 words, and therefore complies with the word-count limit established by NYCRR § 20~ .8-b. Dated: March 19, 2024 Garden City, New York Richard S. Finkel 17532222.1 3/19/2024 10 of 10