Preview
FILED: NEW YORK COUNTY CLERK 03/12/2018 03:42 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 03/12/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------X Index No.: 162502/2015
GREGORY WELCH and PRISCILLA WELCH,
AFFIRMATION IN
Plaintiffs, OPPOSITION TO PLAINTIFF'S
-against- MOTION TO FILE AN
AMENDED COMPLAINT
260-261 MADISON AVENUE LLC, SKYLIFT
CONTRACTOR CORP. and BAY CRANE
SERVICE INC.,
Defendants.
--------------------------------------------------------------------X
SKYLIFT CONTRACTOR CORP.,
Third-Party Plaintiff,
-against-
MARINE 4 INDUSTRIAL SUPPLY COMPANY, INC.,
D/B/A MARINE 4 INDUSTRIAL TESTING
SOLUTIONS; MARINE & INDUSTRIAL TESTING
HANES as successor-by-
SOLUTIONS; SUPPLY, INC.,
merger to and/or d/b/a PAUL'S WIRE ROPE & SLING;
and PAUL'S WIRE ROPE 2 SLING,
Third-Party Defendants.
-----------------------------------------------------------------------X
DAVID F. TAVELLA, an attorney duly admitted to practice law before the courts of the
State of New York, hereby affirms to the truth of the following under the penalties of perjury:
1. I am counsel with the law firm of CASCONE & KLUEPFEL, LLP, attorneys for
third-party defendant, and proposed direct defendant, MARINE & INDUSTRIAL SUPPLY
"MARINE"
COMPANY, INC. (hereinafter "MARINE"), and as such I am fully familiar with the facts and
circumstances surrounding the instant action.
2. I submit this Affirmation in Opposition to Plaintiff's motion to file an amended
complaint pursuant to CPLR 3025(b) to add MARINE as a direct defendant.
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3. MARINE takes no issue regarding the proposed amended complaint regarding
PAUL'S WIRE ROPE AND SLING and HANES SUPPLY, INC. This affirmation is limited to
opposition to adding MARINE as a direct defendant.
4. MARINE does not have sufficient contacts with New York for jurisdiction to
attach to MARINE.
5. The proposed complaint alleges that MARINE was an Alabama Corporation
authorized to conduct business in the State of New York. The proposed third-party complaint
does not even allege contacts sufficient to create personal jurisdiction upon MARINE.
6. Therefore, the motion should be denied as to MARINE.
WHEREFORE for the reason set forth herein, plaintiff's motion for leave to amend the
complaint as to MARINE & INDUSTRIAL SUPPLY COMPANY, INC., should be denied
together with such other and further relief as this court deems just and proper.
Dated: Garden City, New York
March 12, 2018
I
DAVID F. TAVELLA
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NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 03/12/2018
STATE OF NEW YORK )
COUNTY OF NASSAU )ss.:
I Kristin Larice, being duly sworn, say: I am not a party to the action, am
over 18 years of age and reside in Suffolk County New York:
On March 12, 2018 I served the within AFFIRMATION IN OPPOSITION
TO PLAINTIFF'S MOTION TO FILE AN AMENDED COMPLAINT
[x] Service
by a true copy thereof
by depositing in a post-paid
wrapper,in an official under the exclusive care
depository
and official
depositoryunder the
Mail exclusivecare and custody
of the U.S. Postal Service within
the New York State, addressed to each of the
followingpersonsatthelastknown address
setforthafter
eachname:
[] Personal a true copy thereof
by delivering to each person named below
personally I knew
at the address indicated.
each person servedtobe
the person
Served on mentionedand described in said papers as a party
therein:
Individual
[] Serviceby the papers by electronic
by transmitting means to the telephone
number listed
below, which number was
designated by the attorney
for such
Electronic purpose.I received
a signal
from the equipment
of the attorney
served indicating
that the transmission was
received.I also deposited a true
Means copy of the papers, enclosed in a post-paid
wrapper,in an official under the care and custody of
depository
the U.S. Postal Service, addressed to the attorney at the address set forth after each name:
[ ] Overnight by a true
depositing copy enclosed
thereof, in a wrapperaddressed as shownbelow,intothe custody of
UNITED PARCEL SERVICE for overnight prior
delivery, to the latest time designated by that service for
delivery.
TO:
LAW OFFICES OF JAY H. TANENBAUM
Attorneys for Plaintiffs
GREGORY WELCH and PRISCILLA WELCH
14 Wall Street, Suite 5F
New York, NY 10005
(212) 422-1765
File No.: 555-15J-0044
LITTLETON PARK JOYCE UGHETTA 4 KELLY, LLP
Attorneys for Defendant
260-261 MADISON AVENUE LLC
29th
39 Broadway, FlOOr
New York, New York 10006
(212) 404-5777
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GALLO VITUCCI KLAR, LLP
Attorneys for Defendant
BAY CRANE SERVICE, INC.
90 Broad Street, 3rd Floor
New York, NY 10004
KAUFMAN DOLOWICH & VOLUCK, LLP
Attorneys for Defendant/Third Party Plaintiff
SKYLIFT CONTRACTOR CORP.
20th
40 Exchange Place, FlOOr
New York, NY 10005
(212) 485-9600
GORDON REES SCULLY MANSUKHANI, LLP
Attorneys for Third-Party Defendant
HANES SUPPLY, INC.
500 Mamaroneck Avenue, Suite 503
Harrison, NY 10528
(914) 777-2225
PAUL'S WIRE ROPE & SLING
c/o Hanes Supply Inc.
55 James E. Casey Drive
Buffalo, NY 14206
tli
Kristirl Larice
Sworn to before me this
12th day of March, 2018.
Notary Public
DAVID E TAVELLA
Notary Public, State of New York
No. 02TA5020916
Qualified
in Queens
County
Commission Expires Cscember 6, 20~1
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NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 03/12/2018
Index No: 162502/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
GREGORY WELCH and PRISCILLA WELCH,
Plaintiff
- against -
260-261 MADISON AVENUE LLC, et at
Defendants.
SKYLIFT CONTRACTOR CORP.,
Third Party Plaintiff,
-against-
MARINE & INDUSTRIAL SUPPLY COMPANY, INC., et at
Third Party Defendant,
AFFIRMATION IN OPPOSITION TO PLAINTIFF'S
MOTION TO FILE AN AMENDED COMPLAINT
CASCONE & KLUEPFEL, LLP.
Attorneys for Third-Party Defendant
MARINE &
4% INDUSTRIAL SUPPLY COMPANY, INC.
Office and Post Office Address, Telephone
1399 Franklin Avenue
Suite 302
Garden City, New York 11530
(516) 747-1990
(516) 747-1992 Facsimile
To: ALL COUNSEL
Service ofa copy of thewithin
is herebyadmitted,
Dated,
--------------------------------------------------
Attorney(s) forThird Party Defendant
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K. QUILLIN VS. NOELLE BECKER MORENO ET AL
Jul 10, 2024 |
CGC24611734
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 11. DEFENDANT NOELLE MORENO's MOTION TO STRIKE COMPLAINT. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
ARMEN BEGOYAN VS CITY OF LOS ANGELES, ET AL.
Jul 11, 2024 |
21STCV34525
Case Number:
21STCV34525
Hearing Date:
July 11, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 11, 2024
CASE NUMBER
:
21STCV34525
MOTIONS
:
Motion for Terminating Sanctions
MOVING PARTY:
Defendant City of Los Angeles
OPPOSING PARTY:
None
BACKGROUND
Defendant City of Los Angeles (
Defendant) moves for terminating sanctions against Plaintiff
Armen Begoyan (Plaintiff) for failure to comply with the Courts April 26, 2024 discovery order. Defendant seeks to dismiss the entire action. No opposition has been filed.
LEGAL STANDARD
To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).)
Failing to respond or to submit to an authorized method of discovery, or
disobeying a court order to provide discovery,
constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).)
The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (
Los Defensores, Inc. v. Gomez
(2014) 223 Cal.App.4th 377, 390, quoting
Lang v. Hochman
(2000) 77 Cal.App.4th 1225, 1246.)
Generally, [a] decision to order terminating sanctions should not be made lightly.
But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (
Los Defensores, supra
, 223 Cal. App. 4th at p. 390 [citation omitted].)
Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (
Los Defensores, supra
, 223 Cal.App.4th at p. 390 citing
Lang, supra
, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g.,
Collisson & Kaplan v. Hartunian
(1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery];
Laguna Auto Body v. Farmers Ins. Exchange
(1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in
Garcia v. McCutchen
(1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)
If a party . . . fails to obey an order compelling answers [to interrogatories or requests for production], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc. §§ 2030.290(c); 2031.300(c).)
DISCUSSION
Written discovery was originally served on Plaintiff on March 1, 2023. (Kahramanian Decl. ¶ 2.) On September 21, 2023 and January 11, 2024, Defendants counsel emailed Plaintiffs counsel requesting responses but received no response. (
Id.
¶ 3.)
On April 26, 2024, the Court granted
Defendants unopposed motion to compel Plaintiffs responses to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Plaintiff was ordered to provide verified responses, without objections, within 10 days. (Min. Order, 4/26/24.) The Court also imposed $700.00 in monetary sanctions against Plaintiff and his counsel of record.
On May 2, 2024, Defendant filed and served electronic notice of the ruling on Plaintiffs counsel. Defendant contends that no responses have been served complying with the Courts order. (Kahramanian Decl. ¶ 4.) Plaintiff has not filed an opposition to this motion.
Therefore, it appears that the discovery was first served in March 2023, and the motion to compel was granted on April 26, 2024. Throughout this time, Defendant sought to obtain responses through informal ways before ultimately obtaining an order to compel. The delay in time also demonstrates that Defendant has been prevented from mounting a defense against this case. Considering the above, the fact Plaintiff did not oppose this motion nor the previous motion to compel, and monetary sanctions have been ineffective, the Court finds Plaintiffs actions to be willful. Therefore, the motion for terminating sanctions is granted.
CONCLUSION
Therefore, Defendant
City of Los Angeles
motion for terminating sanctions is GRANTED. The only remaining defendants are Doe Defendants who have not been named or served, and therefore t
he Court orders the complaint dismissed in its entirety.
If Defendant moves to dismiss the cross-complaint at the hearing on this motion, then the Final Status Conference and Jury Trial dates will be advanced and vacated.
Defendant shall provide notice of the Courts ruling and file a proof of service of such.
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Gilbert Hernandez vs. In-Shape Health Clubs, LLC
Jul 11, 2024 |
20CV-02521
20CV-02521 Gilbert Hernandez v. In-Shape Health Clubs LLC
Trial Settng Conference
Appearance required. Remote appearances are permitted. Parties who wish to appear
remotely must contact the clerk of the court at (209) 725-4111 to arrange for a remote
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Ruling
SOCORRO ALEGRIA VS ALTAMED HEALTH SERVICES CORPORATION, A CALIFORNIA CORPORATION, ET AL.
Jul 11, 2024 |
24PSCV00032
Case Number:
24PSCV00032
Hearing Date:
July 11, 2024
Dept:
K
1.
Defendant AltaMed Health Services Corporations Motion for Judgment on the Pleadings is summarily GRANTED in part (i.e., as to the fifth, sixth and tenth causes of action) and otherwise DENIED in part (i.e., as to the eighth and ninth causes of action).
2.
Defendant AltaMed Health Services Corporations Motion to Strike is DENIED as MOOT.
Background
Plaintiff Socorro Alegria (Plaintiff) alleges as follows: Plaintiff was sexually assaulted during her March 22, 2023 medical imaging appointment. On January 3, 2024, Plaintiff filed a complaint, asserting causes of action against AltaMed Health Services Corporation (AltaMed), Jose Luis Sanchez and Does 1-20 for:
1.
Negligent Hiring Retention, Supervision and Failure to Terminate (v. AltaMed only)
2.
Common Law Assault (v. Sanchez only)
3.
Common Law Battery (v. Sanchez only)
4.
Sexual Battery in Violation of Civil Code § 1708.5 (v. Sanchez only)
5.
Violation of Civil Code § 51.7
6.
Sexual Harassment in Violation of Civil Code § 51.9
7.
Intentional Infliction of Emotional Distress (v. Sanchez only)
8.
Negligent Infliction of Emotional Distress
9.
Negligence (v. AltaMed only)
10.
Violation of the Tom Bane Civil Rights Act A Case Management Conference is set for July 11, 2024.
1.
Judgment on the Pleadings
Legal Standard
The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (
Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit].)
A motion by a plaintiff may only be made on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint or (2) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c).)
Although a nonstatutory motion may be made at any time either prior to the trial or at the trial itself (
Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)
Discussion
AltaMed moves the court, pursuant to Code of Civil Procedure § 438, for judgment on the pleadings as to the fifth, sixth, and eighth through tenth (i.e., for
Violation of Civil Code § 51.7, Sexual Harassment in Violation of Civil Code § 51.9, Negligent Infliction of Emotional Distress, Negligence and Violation of the Tom Bane Civil Rights Act, respectively)
causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute causes of action.
At the outset, Plaintiff represents that she agrees to dismiss her fifth, sixth and tenth causes of action, without prejudice (Opp., 1:26-2:2); accordingly, in the event a Request for Dismissal is not on file by the time of the hearing, the court will summarily grant the motion in this regard.
The courts following analysis, then, is limited to Plaintiffs eighth and ninth causes of action, for Negligent Infliction of Emotional Distress and Negligence, respectively:
AltaMed asserts that these causes of action fail because it cannot be held vicariously liable for an alleged sexual assault by its employee. [A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment. (
Lisa M. v. Henry Mayo Newhall Memorial Hospital
(1995) 12 Cal.4th 291, 296.) However, [a]n
employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work. (
Id.
at 297).
The court construes Plaintiffs eighth and ninth causes of action as sounding in direct negligence, rather than vicarious liability. Further, while AltaMed contends that these causes of action are surplusage, this argument was raised for the first time in the reply; as such, it is disregarded. The motion is denied in this regard.
2.
Motion to Strike
AltaMed moves the court for an order striking out the following language from Plaintiffs complaint:
1.
Page 12, paragraph 68, lines 6-12;
2.
Page 13, paragraph 79, lines 9-15;
3.
Page 16, paragraph 102, lines 18-24;
4.
Page 17, paragraph 7, line 13;
5.
Page 17, paragraph 9, line 15;
6.
Page 17, paragraph 10, line 16. AltaMeds request is denied as moot. All of the allegations AltaMed seeks to have stricken pertain to the fifth, sixth and tenth causes of action, which Plaintiff has agreed to dismiss.
Ruling
Thompson, Harry Fayne III vs. Rose, Steven Leon et al
Jul 22, 2024 |
S-CV-0052451
S-CV-0052451 Thompson, Harry Fayne III vs. Rose, Steven Leon et al
No appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Grossman, Marilyn Joy
Additionally, no proof of service has been filed as to Defendant(s): Rose, Steven
Leon
Ruling
TODD BERTRANG, ET AL. VS IVORY HOLDINGS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
21STCV42736
Case Number:
21STCV42736
Hearing Date:
July 9, 2024
Dept:
S25 Procedural Background Plaintiffs, Todd Bertrang (Bertrang) and Ophie Beltran (Beltran) (collectively, Plaintiffs) sued Defendants, Lido Sailing Club, Inc. (Lido), Ivory Holdings, LLC (Ivory), and Scott Vollero (Vollero) based on injuries Plaintiffs allege they sustained from Bertrangs exposure to hazardous chemicals. Plaintiffs filed their original complaint on November 18, 2021, and filed a First Amended Complaint (FAC) on May 4, 2022. Notably, Plaintiffs did not serve any party prior to filing their FAC, and no party responded to the original complaint. On September 8, 2022, the Court sustained Lido Sailing Club, LLCs demurrer to the FAC with leave to amend. (September 8, 2022 Minute Order.) On September 30, 2022, Plaintiffs filed their Second Amended Complaint (SAC). On October 5, 2022, Lido filed a demurrer to the SAC. Shortly thereafter, the personal injury hub court found the case complicated and transferred it to Long Beach for all further proceedings. On January 12, 2023, Lido re-filed its demurrer to the SAC in Department S27. On June 27, 2023, the Court continued the hearing on the demurrer, finding the parties had not adequately met and conferred prior to filing their papers. On July 27, 2023, the Court sustained the demurrer with leave to amend. On September 20, 2023, rather than amending the SAC, Plaintiffs dismissed Lido from the case. On December 21, 2023, Defendants Ivory Holdings and Vollero filed a demurrer with the motion to strike portions of the SAC. On January 23, 2024, the Court sustained the demurrer with leave to 20 days amend as to the NIED cause of action and alter ego liability cause of action and overruled the strict liability for ultrahazardous activity cause of action, the violation of Health and Safety Code, § 25359.7, cause of action and the IIED cause of action; the Court also granted the motion to strike without leave to amend as to punitive damages and related allegations. (January 23, 2024 Minute Order.) On April 24, 2024, Plaintiffs filed a Third Amended Complaint (TAC) more than two months after the Courts January 23 order. Meet and Confer Defendant Volleros counsel states that he sent a meet and confer letter to Plaintiffs counsel on May 17, 2024 detailing issues with the TAC and his availability for a telephonic meet and confer at least 5 days prior to filing the instant motions. (Rasmussen Decl.1, ¶ 5, Exh. B.) Defendant Volleros counsel states that Plaintiffs counsel did not respond to the meet and confer attempt. (Id., at ¶ 6.) In opposition, Plaintiffs counsel argues Defendant Volleros counsel failed to meet and confer because the issues were not discussed in person or by telephone as required under Code Civ. Proc., §§ 430.41, 435.5. Notwithstanding the parties conflicting ideas of meet and confer, it is very likely an informal attempt to resolve the matter would have been unsuccessful. Analysis 1. Delay in Filing of Third Amended Complaint Code Civ. Proc., § 472b, states that: [w] hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7:145; Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 613.) While a court has discretion to require a noticed motion before permitting a plaintiff to file an amended complaint late, a court also has the discretion to accept a filing without a noticed motion. (Harlan v. Dep't of Transportation (2005) 132 Cal. App. 4th 868, 873.) The Court exercises its discretion and accepts Plaintiffs untimely filed Third Amended Complaint without a noticed motion. 2. Second Amended Complaint Holding (Alter Ego) On January 23, 2024, Judge Mark Kim sustained Defendant Volleros Demurrer to the Second Amended Complaint with leave to amend. Judge Kim ruled: All claims against Volero are plead on an alter ego theory. Plaintiffs alter ego allegations are found at ¶6 of the SAC, and merely allege that each defendant was acting as the alter ego of each other defendant. Relying on Rutherford Holdings, LLC v. Playa del Rey (2014) 223 Cal.App. 221, 236, Judge Kim held: Plaintiffs herein failed to allege any of the ultimate facts showing alter ego liability. They failed to allege unity of interest, domination and control, inadequate capitalization, etc. Voleros demurrer is therefore sustained with leave to amend. Plaintiffs must allege ultimate facts showing imposition of liability against Volero would be proper. (See January 23, 2024 Minute Order, Legal Standard on Demurrer, Alter Ego Liability, 3(h)). 3. Demurrer to the Third Amended Complaint (Alter Ego) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247. The burden is on the complainant to show in what manner and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allegations of alter ego in the TAC are found at ¶ 3 and 6. These allegations are identical to the alter ego allegations found at ¶ 3 and ¶6 of the SAC. No additional facts or allegations have been added by Plaintiffs. As discussed, Judge Kim found those allegations deficient as Plaintiff failed to allege any of the ultimate facts showing alter ego liability and failed to allege unity of interest, domination and control, inadequate capitalization. (January 23, 2024 Minute Order). In sum, Plaintiffs completely failed to amend or modify their operative pleading in any manner or in compliance with Judge Kims ruling. In Plaintiffs opposition, Plaintiffs request leave to amend by suggesting three new facts, previously unknown, support the theory of alter ego between Vollero and Ivory Holdings. These facts are: (1) and (2) on August 16, 2016, two separate Deeds of Trust were recorded against the subject premises with Vollero as the Beneficiary and (3) Vollero, as an individual, performed the alleged remediation of the toxic chemicals which are alleged to have harmed Plaintiffs. Assuming the new facts found in Plaintiffs Opposition are true, Plaintiffs have not met their burden demonstrating how or in what manner these new allegations support of finding that a reasonable possibility exist for Plaintiffs to cure the defects and successfully pled a theory of alter ego. (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805.) These additional facts show no connection between Vollero and Ivory Holdings. Even with the inclusion of those three allegations, Plaintiffs operative pleading would fail to allege any of the ultimate facts showing an alter ego theory as set forth in Rutherford (e.g. allegations of unity of interest, domination and control, inadequate capitalization). 4. Ruling The Court sustains Defendant Volleros Demurrer without leave to amend. Defendant Volleros motion to strike is now moot.
Ruling
Luis Kutz, et al vs Jennifer Fribourgh, et al
Jul 11, 2024 |
23CV01711
23CV01711
KUTZ et al. v. FRIBOURGH et al.
(UNOPPOSED) PLAINTIFFS’ MOTIONS TO BE RELIEVED
The unopposed motions are denied without prejudice. Counsel must refile to reflect
correct upcoming hearing dates in the declarations and proposed orders.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 1 of 1
Ruling
Dryden, Donna vs Tri Counties Bank
Jul 10, 2024 |
23CV03115
23CV03115 Dryden, Donna et al. v. Tri Counties Bank
EVENT: Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel
Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel is GRANTED. Defendant
shall file a responsive pleading within 60 days of the date of this order. The Court will sign the
proposed order with the noted modification.
Document
Patrick Strickland v. W.I.P. Club, Inc., Barry Mullineaux, Collective Hardware, Inc., John Bakhishi, Lina Kay, Hirukuni Sai, John C. Best, Frank Porco, Merlin Bobb-Willis, 150 Rft Varick Corp., 150 Rft Varick Basement Llc, W. & M. Operating, L.L.C., Aubrey Graham Drake a/k/a DRAKE, Allstar Security & Consulting, Inc., Christopher Maurice Brown a/k/a CHRIS BROWN
Apr 08, 2013 |
Anil Singh
|
Tort |
Tort |
153185/2013
Document
Melania Rodriguez and RYAN LUNT, as Parents and Natural Guardians of Z.L, Melania Rodriguez, Ryan Lunt Individually v. Nicholas James Buffin M.D., Valerie Lewis-Morris M.D., Emily Schmidt-Beuchat M.D., Hope S. Langer M.D., Youyin Choy M.D., Lois Brustman M.D., Susan Rothenberg M.D., Helaine Worrell M.D., Mount Sinai West, West Care Medical, P.C.,, Faculty Practice Associates-Mount Sinai Hospital,, Midtown Ob/Gyn
Mar 15, 2021 |
John J. Kelley
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
805086/2021
Preview
FILED: NEW YORK COUNTY CLERK 03/12/2018 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 03/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X Index No.: 162502/2015 GREGORY WELCH and PRISCILLA WELCH, AFFIRMATION IN Plaintiffs, OPPOSITION TO PLAINTIFF'S -against- MOTION TO FILE AN AMENDED COMPLAINT 260-261 MADISON AVENUE LLC, SKYLIFT CONTRACTOR CORP. and BAY CRANE SERVICE INC., Defendants. --------------------------------------------------------------------X SKYLIFT CONTRACTOR CORP., Third-Party Plaintiff, -against- MARINE 4 INDUSTRIAL SUPPLY COMPANY, INC., D/B/A MARINE 4 INDUSTRIAL TESTING SOLUTIONS; MARINE & INDUSTRIAL TESTING HANES as successor-by- SOLUTIONS; SUPPLY, INC., merger to and/or d/b/a PAUL'S WIRE ROPE & SLING; and PAUL'S WIRE ROPE 2 SLING, Third-Party Defendants. -----------------------------------------------------------------------X DAVID F. TAVELLA, an attorney duly admitted to practice law before the courts of the State of New York, hereby affirms to the truth of the following under the penalties of perjury: 1. I am counsel with the law firm of CASCONE & KLUEPFEL, LLP, attorneys for third-party defendant, and proposed direct defendant, MARINE & INDUSTRIAL SUPPLY "MARINE" COMPANY, INC. (hereinafter "MARINE"), and as such I am fully familiar with the facts and circumstances surrounding the instant action. 2. I submit this Affirmation in Opposition to Plaintiff's motion to file an amended complaint pursuant to CPLR 3025(b) to add MARINE as a direct defendant. 1 of 5 FILED: NEW YORK COUNTY CLERK 03/12/2018 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 03/12/2018 3. MARINE takes no issue regarding the proposed amended complaint regarding PAUL'S WIRE ROPE AND SLING and HANES SUPPLY, INC. This affirmation is limited to opposition to adding MARINE as a direct defendant. 4. MARINE does not have sufficient contacts with New York for jurisdiction to attach to MARINE. 5. The proposed complaint alleges that MARINE was an Alabama Corporation authorized to conduct business in the State of New York. The proposed third-party complaint does not even allege contacts sufficient to create personal jurisdiction upon MARINE. 6. Therefore, the motion should be denied as to MARINE. WHEREFORE for the reason set forth herein, plaintiff's motion for leave to amend the complaint as to MARINE & INDUSTRIAL SUPPLY COMPANY, INC., should be denied together with such other and further relief as this court deems just and proper. Dated: Garden City, New York March 12, 2018 I DAVID F. TAVELLA 2 of 5 FILED: NEW YORK COUNTY CLERK 03/12/2018 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 03/12/2018 STATE OF NEW YORK ) COUNTY OF NASSAU )ss.: I Kristin Larice, being duly sworn, say: I am not a party to the action, am over 18 years of age and reside in Suffolk County New York: On March 12, 2018 I served the within AFFIRMATION IN OPPOSITION TO PLAINTIFF'S MOTION TO FILE AN AMENDED COMPLAINT [x] Service by a true copy thereof by depositing in a post-paid wrapper,in an official under the exclusive care depository and official depositoryunder the Mail exclusivecare and custody of the U.S. Postal Service within the New York State, addressed to each of the followingpersonsatthelastknown address setforthafter eachname: [] Personal a true copy thereof by delivering to each person named below personally I knew at the address indicated. each person servedtobe the person Served on mentionedand described in said papers as a party therein: Individual [] Serviceby the papers by electronic by transmitting means to the telephone number listed below, which number was designated by the attorney for such Electronic purpose.I received a signal from the equipment of the attorney served indicating that the transmission was received.I also deposited a true Means copy of the papers, enclosed in a post-paid wrapper,in an official under the care and custody of depository the U.S. Postal Service, addressed to the attorney at the address set forth after each name: [ ] Overnight by a true depositing copy enclosed thereof, in a wrapperaddressed as shownbelow,intothe custody of UNITED PARCEL SERVICE for overnight prior delivery, to the latest time designated by that service for delivery. TO: LAW OFFICES OF JAY H. TANENBAUM Attorneys for Plaintiffs GREGORY WELCH and PRISCILLA WELCH 14 Wall Street, Suite 5F New York, NY 10005 (212) 422-1765 File No.: 555-15J-0044 LITTLETON PARK JOYCE UGHETTA 4 KELLY, LLP Attorneys for Defendant 260-261 MADISON AVENUE LLC 29th 39 Broadway, FlOOr New York, New York 10006 (212) 404-5777 3 of 5 FILED: NEW YORK COUNTY CLERK 03/12/2018 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 03/12/2018 GALLO VITUCCI KLAR, LLP Attorneys for Defendant BAY CRANE SERVICE, INC. 90 Broad Street, 3rd Floor New York, NY 10004 KAUFMAN DOLOWICH & VOLUCK, LLP Attorneys for Defendant/Third Party Plaintiff SKYLIFT CONTRACTOR CORP. 20th 40 Exchange Place, FlOOr New York, NY 10005 (212) 485-9600 GORDON REES SCULLY MANSUKHANI, LLP Attorneys for Third-Party Defendant HANES SUPPLY, INC. 500 Mamaroneck Avenue, Suite 503 Harrison, NY 10528 (914) 777-2225 PAUL'S WIRE ROPE & SLING c/o Hanes Supply Inc. 55 James E. Casey Drive Buffalo, NY 14206 tli Kristirl Larice Sworn to before me this 12th day of March, 2018. Notary Public DAVID E TAVELLA Notary Public, State of New York No. 02TA5020916 Qualified in Queens County Commission Expires Cscember 6, 20~1 4 of 5 FILED: NEW YORK COUNTY CLERK 03/12/2018 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 03/12/2018 Index No: 162502/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK GREGORY WELCH and PRISCILLA WELCH, Plaintiff - against - 260-261 MADISON AVENUE LLC, et at Defendants. SKYLIFT CONTRACTOR CORP., Third Party Plaintiff, -against- MARINE & INDUSTRIAL SUPPLY COMPANY, INC., et at Third Party Defendant, AFFIRMATION IN OPPOSITION TO PLAINTIFF'S MOTION TO FILE AN AMENDED COMPLAINT CASCONE & KLUEPFEL, LLP. Attorneys for Third-Party Defendant MARINE & 4% INDUSTRIAL SUPPLY COMPANY, INC. Office and Post Office Address, Telephone 1399 Franklin Avenue Suite 302 Garden City, New York 11530 (516) 747-1990 (516) 747-1992 Facsimile To: ALL COUNSEL Service ofa copy of thewithin is herebyadmitted, Dated, -------------------------------------------------- Attorney(s) forThird Party Defendant 5 of 5