Preview
FILED: NEW YORK COUNTY CLERK 04/05/2018 11:52 AM INDEX NO. 162502/2015
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 04/05/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
—————————
--------------------------------------------------------------------X Index No.: 162502/2015
GREGORY WELCH and PRISCILLA WELCH,
Plaintiffs,
-against- AFFIRMATION IN SUPPORT
260-261 MADISON AVENUE LLC, SKYLIFT
CONTRACTOR CORP. and BAY CRANE
SERVICE INC.,
Defendants.
-
--------------------------------------------------------------------X
SKYLIFT CONTRACTOR CORP.,
Third-Party Plaintiff,
-against-
MARINE & INDUSTRIAL SUPPLY COMPANY, INC.,
D/B/A MARINE & INDUSTRIAL TESTING
SOLUTIONS; MARINE & INDUSTRIAL TESTING
SOLUTIONS; HANES as successor-by-
SUPPLY, INC.,
merger to and/or d/b/a PAUL'S WIRE ROPE & SLING;
and PAUL'S WIRE ROPE & SLING,
Third-Party Defendants.
_____......._....--______________ _______________ _________ __------------X
DAVID F. TAVELLA, an attorney duly licensed to practice law in the State of New York, hereby
affirms that the following is true under the penalties of perjury:
1. I am counsel to the law firm of CASCONE & KLUEPFEL, LLP, attorneys for the
third-party defendant, MARINE & INDUSTRIAL SUPPLY COMPANY, INC., (hereinafter
"MARINE"
"MARINE") and as such, I am fully familiar with the facts and circumstances of this matter.
2. I make this affirmation in support of third-party defendant's motion for an Order
dismissing the plaintiff's complaint for lack of personal jurisdiction pursuant to CPLR 321 l(a)(8)
and 302(a) and granting such other and further reliefas this Court deems just and proper.
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3. This action was commenced on or about September 6, 2017 by the filing of a
Summons and Verified Complaint in the underlying action. A copy of the Summons and Complaint
in the underlying action is annexed as Exhibit A
4. A third-party action was commenced on or about October 13, 2017 by third-party
defendant, SKYLIFT CONTRACTOR CORP. A copy of third party plaintiff's third-party
summons and complaint is annexed as Exhibit B.
5. Issued was joined MARINE with the service of a Third-
by third-party defendant,
Party Answer, dated December 11, 2017. A copy of the third-party answer is annexed as Exhibit C.
6. Plaintiff has moved to amend the complaint to add marine as a direct defendant.
That motion is pending.
STATEMENT OF FACTS
7. This action involves a crane accident that occurred on May 31, 2017. On that day,
an air conditioning unit was being hoisted by a crane at 261 Madison Avenue, New York New
30"'
York. The crane was hoisting the air conditioning unit to the floor.
8. 261 Madison Avenue was owned —
262-261 Madison Avenue LLC. The crane was
by
being operated by SKYLIFT CONTRACTOR CORP. (hereinafter "SKYLIFT"). During the
hoisting, the sling that was used to secure the air-conditioning unit to the hoist of the crane allegedly
snapped. The air conditioning unit fell,allegedly damaging the building, several units of the
building, and caused personal injury to pedestrians in the street below.
9. MARINE allegedly manufactured the sling in question. MARINE isan Alabama
company with a principal place of business in Mobile Alabama. The only other sales office for
MARINE is located in Prairieville Louisiana. See affidavit of Thomas Benton annexed hereto.
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10. The sling allegedly at issue is believed to have been sold by MARINE to PAUL'S
WIRE ROPE & SLING (hereinafter "PAUL'S"). PAUL'S, at the time of the sale.was based in
Branford Connecticut. See Benton Affidavit.
11. All negotiations for sale of the sling took place in Alabama and Connecticut. The
sling was delivered in Connecticut no invoices were sent to PAUL'S in Connecticut. See Benton
Affidavit.
12. No contract negotiations regarding any sales to PAUL'S was performed in New
York. See Benton Affidavit.
13. New York has no contacts with the sale of the sling in question. See Benton
Affidavit.
14. MARINE does not solicit any business in New York, has no advertising directed to
New York, has no salespeople in New York, has no bank accounts in New York, does not own any
real or personal property in New York, has no full or part-time personnel in New York, and is not
authorized or registered to do business in New York. See Benton Affidavit.
ARGUMENT
POINT I
THE COURT LACKS JURISDICTION OVER MARINE BECAUSE MARINE LACKS
SUFFICIENT CONTACTS NEW YORK
15. The third-party complaint does not specifically allege pursuant to what section of
the CPLR third-party plaintiff Skylift is asserting jurisdiction. The third-party complaint alleges
that Marine regularly does business in the State of New York, and that Marine draws substantial
revenue from products used in the State of New York, or derives substantial revenue from
interstate or international commerce, and expected or should reasonably have expected its
tortious acts to have consequences in the State of New York. This appears to be asserting
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jurisdiction under the CPLR Section 302(a)(3). However, for the purposes of this motion, we
will address the CPLR 302(a)(1) jurisdictional question first.
16. CPLR Section 302(a)(1) permits jurisdiction over non-domiciliaries, such as
Marine, if the non-domiciliary transacts any business within the state or contracts anywhere to
supply goods or services in the state. However, the Courts of New York have not permitted such
board jurisdictional assertions.
17. Most recently, the Court of Appeals addressed jurisdictional assertions under
CPLR 302(a)(1). The Court held:
This rule provides two distinct grounds for long arm jurisdiction: where a
business"
defendant "transacts any in the state and where defendant
state."
"contracts anywhere to supply goods or services in the Under either
ground, we conduct a twofold inquiry. Under either ground, we conduct a
twofold jurisdictional inquiry. First, defendant must have purposely
availed itself of "the privilege of conducting activities within the forum
state"
by either transacting business in New York or contracting to supply
goods or services in New York. Second, the claim must arise from that
business transaction or from the contract to supply goods or services.
See, Memorandum of Law
18. In this case, there is no assertion that the claim arises out of any business
transaction arising in New York. Indeed, it is undisputed that the sling at issue purchased by
Paul's in Connecticut and was supplied to Skylift by Paul's and/or Hanes. While Marine may
have supplied the sling to Paul's, that transaction took place in Connecticut.
19. It is likewise undisputed that the transaction in question did not occur in New
York. Therefore, there is no jurisdiction under CPLR 302(a)(1).
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POINT II
THE COURT LACKS JURISDICTION
PURSUANT TO CPLR 302(A)(3)
20. CPLR Section 302(a)(3) provides that a court may exercise personal jurisdiction
over non-domiciliaries for:
302. Personal jurisdiction by acts of non-domiciliaries.
(a) Acts which are the basis of jurisdiction. As to a cause of action
arising from any of the acts enumerated in this section, a court
may exercise personal jurisdiction over any non-domiciliary, or
his executor or administrator, who in person or through an
agent.
* * *
3. Commits a tortious act without the state causing injury to
person or property within the state, except as to cause of action
for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any
other persistent course of conduct, or derives substantial
revenue from goods used or consumed or services rendered, in
the state, or
(ii) expects or should reasonably expect the act to have
consequences in the state and derives substantial revenue form
interstate or international commerce; or
21. Here, Marine does not regularly do business in New York, and does not receive
substantial revenue from goods that are used or consumed in New York, and Marine does not
expect, nor should it reasonably expect, that its sales to foreign corporations would have
consequences in the state.
22. In determining whether jurisdiction is appropriate under CPLR 302(a)(3), in order
to establish that nondomiciliary generally does or solicits business in New York, it must be
shown that his overall contact with New York is substantial enough to make itreasonable to
subject him to jurisdiction, and feasible for him to defend here. See, Memorandum of law.
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23. In the instant action, Marine's contacts with New York are minimal. Marine is not
registered, authorized or qualified to do business in New York, does not maintain any bank
accounts in New York, does not have any real or personal property in New York, and has no
sales personnel or agents in New York. In addition, the amount of business conducted in New
York by Marine for 2008, the year the sling was sold to the Connecticut Corporation, was only
$3,011.00. Marine sold no products at allin New York in 2017.
24. Total business for Marine in New York has consistently been less than one
percent of Marine's business. Indeed, the total sales to New York between 2014 through 2017 to
New York total $4,080.00. Total sales to all customers by Marine in 2017 alone was
$7,181,335.40. Therefore, total sales to New York represented approximately 0.05% of all
MARINE's sales. This does not meet the criteria of regularly soliciting business in New York or
deriving a substantial revenue from New York. See, Memorandum of Law.
25. A non-domiciliary defendant that had only 0.05% of itstotal sales were located in
New York does not meet the minimum standards for jurisdiction to attach. See Memorandum of
Law. Such minimal business activity cannot be construed as rising to the level of or
doing
soliciting of business in New York for the purposes of CPLR Section 302(a)(i). Nor, in light of
the undisputed evidence of Marine's minimum revenue from its New York sales, Marine be
deemed to derive substantial revenue from itsbusiness dealings here. See, Memorandum of Law.
26. In addition, MARINE's activities do not arise to the level to confer jurisdiction
under CPLR 302(a)(3)(ii). The facts of this case do not establish that MARINE expected or
should have reasonably expected that the act would have consequences in the state.
27. To confer jurisdiction under CPLR 302(a)(3)(ii), the court must look at the five
elements: First, that defendant committed a tortious act outside the State; second, that the cause
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of action arises from that act; third, that the act caused injury to a person or property within the
State; fourth, that defendant expected or should reasonably have expected the act to have
consequences in the State; and fifth, that defendant derived substantial revenue from interstate or
international commerce. See, Memorandum of law.
28. Here, none of Marine's production facilities or offices are in New York. Marine
has no sales people in New York, no bank accounts in New York, owns no property in New
York, and is not authorized or registered todobusiness in New York. Therefore, jurisdiction is
not proper against Marine. See, memorandum of Law.
29. Here, Marine could not have expected that the sling in question would have
caused injuries in New York. The sling was sold to a Connecticut company in Connecticut.
While Connecticut is close geographically to New York, that coincidence standing alone, is not
sufficient for jurisdiction to attach. Therefore, itis improper for New York to assert jurisdiction
over Marine and the third-party complaint should be dismissed as to Marine.
POINT III
DUE PROCESS DOES NOT PERMIT JURISDICTION AGAINST MARINE
30. The Due Process Clause of the U.S. Constitution requires something more than
that the defendant was aware of its products entry into the forum State in order for the State to
connection"
exert jurisdiction over the defendant. There must be a "substantial between the
defendant and the forum state necessary for finding of minimum contacts, and this substantial
connection must come out by an action of the defendant itself purposely directed toward the
forum state.
The placement of a product into the stream of commerce, without more, is
not an act of the defendant purposefully directed toward the forum State.
Additional conduct of the defendant may indicate an intent or purpose to
serve the market in the forum State, for example, designing the product for
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the market in the forum State, in the forum State,
advertising establishing
channels for providing regular advice to customers in the forum State, or
marketing the product to a distributor who has agreed to serve as the sales
agent in the forum State. But a defendant's awareness that the stream of
commerce may or will sweep the product into the forum State does not
convert the mere act of placing the product into the stream into an act
purposefully directed toward the forum State.
See, Memorandum of Law. Here. there is no indication that Marine precured any purposeful
affiliation with New York, and its connection with New York in this matter arose from Paul's
decision to transport Marine's product to New York.
31. Here, Marine's percentage of New York sales was less than 0.5%. In addition,
there is no indication that Marine pursued any purposeful affiliation with New York in 2008. Its
only connection with New York at the time arose from Paul's decision, sometime after the
purchase, to apparently sell the product to defendant Skylift. This does not meet the standard to
assert jurisdiction against Marine. See, Memorandum of Law.
32. Where only a small percentage (less than 1%, totaling $9,000) of a
nondomiciliary total sales were to a wholesaler located New York, and those transactions were
unrelated to the transaction which caused injury, that minimal business activity could not be
construed as rising to the level of doing or soliciting business in New York, and thus jurisdiction
was not found. See, Memorandum of Law. The mere likelihood that a product would find its
way into New York was insufficient to assert jurisdiction. See, Memorandum of Law.
33. Marine's contacts with New York are similar to those in Murdock. Less than
0.5% of the total sales are directed to New York. That minimal contact cannot be deemed to
indicate that Marine had sufficient minimum contacts with New York to assert jurisdiction.
34. Marine does not have sufficient, minimal activity in New York forNew York to
assert jurisdiction as to Marine. Marine solicited no business in New York, have no salespersons
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or advertising in New York, owned no property in New York, and has no bank accounts in New
York. Therefore, the Due Process clause of the Constitution does not permit jurisdiction over
Marine. See, Memorandum of Law.
CONCLUSION
WHEREFORE, for the reasons set forth herein, in the accompanying affidavit of David
F. Tavella with exhibits, and the affidavit of Thomas Benton, Marine's motion to dismiss should
be granted, together with such other and further relief as this court deems just and proper.
Dated: Garden City, New York
April 4, 2018
David Tavella
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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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Jul 11, 2024 |
20CV-02521
20CV-02521 Gilbert Hernandez v. In-Shape Health Clubs LLC
Trial Settng Conference
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appearance. Appear to address the status of case following the unsuccessful mediation
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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 04/05/2018 11:52 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 04/05/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ————————— --------------------------------------------------------------------X Index No.: 162502/2015 GREGORY WELCH and PRISCILLA WELCH, Plaintiffs, -against- AFFIRMATION IN SUPPORT 260-261 MADISON AVENUE LLC, SKYLIFT CONTRACTOR CORP. and BAY CRANE SERVICE INC., Defendants. - --------------------------------------------------------------------X SKYLIFT CONTRACTOR CORP., Third-Party Plaintiff, -against- MARINE & INDUSTRIAL SUPPLY COMPANY, INC., D/B/A MARINE & INDUSTRIAL TESTING SOLUTIONS; MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES as successor-by- SUPPLY, INC., merger to and/or d/b/a PAUL'S WIRE ROPE & SLING; and PAUL'S WIRE ROPE & SLING, Third-Party Defendants. _____......._....--______________ _______________ _________ __------------X DAVID F. TAVELLA, an attorney duly licensed to practice law in the State of New York, hereby affirms that the following is true under the penalties of perjury: 1. I am counsel to the law firm of CASCONE & KLUEPFEL, LLP, attorneys for the third-party defendant, MARINE & INDUSTRIAL SUPPLY COMPANY, INC., (hereinafter "MARINE" "MARINE") and as such, I am fully familiar with the facts and circumstances of this matter. 2. I make this affirmation in support of third-party defendant's motion for an Order dismissing the plaintiff's complaint for lack of personal jurisdiction pursuant to CPLR 321 l(a)(8) and 302(a) and granting such other and further reliefas this Court deems just and proper. 1 of 9 FILED: NEW YORK COUNTY CLERK 04/05/2018 11:52 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 04/05/2018 3. This action was commenced on or about September 6, 2017 by the filing of a Summons and Verified Complaint in the underlying action. A copy of the Summons and Complaint in the underlying action is annexed as Exhibit A 4. A third-party action was commenced on or about October 13, 2017 by third-party defendant, SKYLIFT CONTRACTOR CORP. A copy of third party plaintiff's third-party summons and complaint is annexed as Exhibit B. 5. Issued was joined MARINE with the service of a Third- by third-party defendant, Party Answer, dated December 11, 2017. A copy of the third-party answer is annexed as Exhibit C. 6. Plaintiff has moved to amend the complaint to add marine as a direct defendant. That motion is pending. STATEMENT OF FACTS 7. This action involves a crane accident that occurred on May 31, 2017. On that day, an air conditioning unit was being hoisted by a crane at 261 Madison Avenue, New York New 30"' York. The crane was hoisting the air conditioning unit to the floor. 8. 261 Madison Avenue was owned — 262-261 Madison Avenue LLC. The crane was by being operated by SKYLIFT CONTRACTOR CORP. (hereinafter "SKYLIFT"). During the hoisting, the sling that was used to secure the air-conditioning unit to the hoist of the crane allegedly snapped. The air conditioning unit fell,allegedly damaging the building, several units of the building, and caused personal injury to pedestrians in the street below. 9. MARINE allegedly manufactured the sling in question. MARINE isan Alabama company with a principal place of business in Mobile Alabama. The only other sales office for MARINE is located in Prairieville Louisiana. See affidavit of Thomas Benton annexed hereto. 2 of 9 FILED: NEW YORK COUNTY CLERK 04/05/2018 11:52 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 04/05/2018 10. The sling allegedly at issue is believed to have been sold by MARINE to PAUL'S WIRE ROPE & SLING (hereinafter "PAUL'S"). PAUL'S, at the time of the sale.was based in Branford Connecticut. See Benton Affidavit. 11. All negotiations for sale of the sling took place in Alabama and Connecticut. The sling was delivered in Connecticut no invoices were sent to PAUL'S in Connecticut. See Benton Affidavit. 12. No contract negotiations regarding any sales to PAUL'S was performed in New York. See Benton Affidavit. 13. New York has no contacts with the sale of the sling in question. See Benton Affidavit. 14. MARINE does not solicit any business in New York, has no advertising directed to New York, has no salespeople in New York, has no bank accounts in New York, does not own any real or personal property in New York, has no full or part-time personnel in New York, and is not authorized or registered to do business in New York. See Benton Affidavit. ARGUMENT POINT I THE COURT LACKS JURISDICTION OVER MARINE BECAUSE MARINE LACKS SUFFICIENT CONTACTS NEW YORK 15. The third-party complaint does not specifically allege pursuant to what section of the CPLR third-party plaintiff Skylift is asserting jurisdiction. The third-party complaint alleges that Marine regularly does business in the State of New York, and that Marine draws substantial revenue from products used in the State of New York, or derives substantial revenue from interstate or international commerce, and expected or should reasonably have expected its tortious acts to have consequences in the State of New York. This appears to be asserting 3 of 9 FILED: NEW YORK COUNTY CLERK 04/05/2018 11:52 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 04/05/2018 jurisdiction under the CPLR Section 302(a)(3). However, for the purposes of this motion, we will address the CPLR 302(a)(1) jurisdictional question first. 16. CPLR Section 302(a)(1) permits jurisdiction over non-domiciliaries, such as Marine, if the non-domiciliary transacts any business within the state or contracts anywhere to supply goods or services in the state. However, the Courts of New York have not permitted such board jurisdictional assertions. 17. Most recently, the Court of Appeals addressed jurisdictional assertions under CPLR 302(a)(1). The Court held: This rule provides two distinct grounds for long arm jurisdiction: where a business" defendant "transacts any in the state and where defendant state." "contracts anywhere to supply goods or services in the Under either ground, we conduct a twofold inquiry. Under either ground, we conduct a twofold jurisdictional inquiry. First, defendant must have purposely availed itself of "the privilege of conducting activities within the forum state" by either transacting business in New York or contracting to supply goods or services in New York. Second, the claim must arise from that business transaction or from the contract to supply goods or services. See, Memorandum of Law 18. In this case, there is no assertion that the claim arises out of any business transaction arising in New York. Indeed, it is undisputed that the sling at issue purchased by Paul's in Connecticut and was supplied to Skylift by Paul's and/or Hanes. While Marine may have supplied the sling to Paul's, that transaction took place in Connecticut. 19. It is likewise undisputed that the transaction in question did not occur in New York. Therefore, there is no jurisdiction under CPLR 302(a)(1). 4 of 9 FILED: NEW YORK COUNTY CLERK 04/05/2018 11:52 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 04/05/2018 POINT II THE COURT LACKS JURISDICTION PURSUANT TO CPLR 302(A)(3) 20. CPLR Section 302(a)(3) provides that a court may exercise personal jurisdiction over non-domiciliaries for: 302. Personal jurisdiction by acts of non-domiciliaries. (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent. * * * 3. Commits a tortious act without the state causing injury to person or property within the state, except as to cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue form interstate or international commerce; or 21. Here, Marine does not regularly do business in New York, and does not receive substantial revenue from goods that are used or consumed in New York, and Marine does not expect, nor should it reasonably expect, that its sales to foreign corporations would have consequences in the state. 22. In determining whether jurisdiction is appropriate under CPLR 302(a)(3), in order to establish that nondomiciliary generally does or solicits business in New York, it must be shown that his overall contact with New York is substantial enough to make itreasonable to subject him to jurisdiction, and feasible for him to defend here. See, Memorandum of law. 5 of 9 FILED: NEW YORK COUNTY CLERK 04/05/2018 11:52 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 04/05/2018 23. In the instant action, Marine's contacts with New York are minimal. Marine is not registered, authorized or qualified to do business in New York, does not maintain any bank accounts in New York, does not have any real or personal property in New York, and has no sales personnel or agents in New York. In addition, the amount of business conducted in New York by Marine for 2008, the year the sling was sold to the Connecticut Corporation, was only $3,011.00. Marine sold no products at allin New York in 2017. 24. Total business for Marine in New York has consistently been less than one percent of Marine's business. Indeed, the total sales to New York between 2014 through 2017 to New York total $4,080.00. Total sales to all customers by Marine in 2017 alone was $7,181,335.40. Therefore, total sales to New York represented approximately 0.05% of all MARINE's sales. This does not meet the criteria of regularly soliciting business in New York or deriving a substantial revenue from New York. See, Memorandum of Law. 25. A non-domiciliary defendant that had only 0.05% of itstotal sales were located in New York does not meet the minimum standards for jurisdiction to attach. See Memorandum of Law. Such minimal business activity cannot be construed as rising to the level of or doing soliciting of business in New York for the purposes of CPLR Section 302(a)(i). Nor, in light of the undisputed evidence of Marine's minimum revenue from its New York sales, Marine be deemed to derive substantial revenue from itsbusiness dealings here. See, Memorandum of Law. 26. In addition, MARINE's activities do not arise to the level to confer jurisdiction under CPLR 302(a)(3)(ii). The facts of this case do not establish that MARINE expected or should have reasonably expected that the act would have consequences in the state. 27. To confer jurisdiction under CPLR 302(a)(3)(ii), the court must look at the five elements: First, that defendant committed a tortious act outside the State; second, that the cause 6 of 9 FILED: NEW YORK COUNTY CLERK 04/05/2018 11:52 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 04/05/2018 of action arises from that act; third, that the act caused injury to a person or property within the State; fourth, that defendant expected or should reasonably have expected the act to have consequences in the State; and fifth, that defendant derived substantial revenue from interstate or international commerce. See, Memorandum of law. 28. Here, none of Marine's production facilities or offices are in New York. Marine has no sales people in New York, no bank accounts in New York, owns no property in New York, and is not authorized or registered todobusiness in New York. Therefore, jurisdiction is not proper against Marine. See, memorandum of Law. 29. Here, Marine could not have expected that the sling in question would have caused injuries in New York. The sling was sold to a Connecticut company in Connecticut. While Connecticut is close geographically to New York, that coincidence standing alone, is not sufficient for jurisdiction to attach. Therefore, itis improper for New York to assert jurisdiction over Marine and the third-party complaint should be dismissed as to Marine. POINT III DUE PROCESS DOES NOT PERMIT JURISDICTION AGAINST MARINE 30. The Due Process Clause of the U.S. Constitution requires something more than that the defendant was aware of its products entry into the forum State in order for the State to connection" exert jurisdiction over the defendant. There must be a "substantial between the defendant and the forum state necessary for finding of minimum contacts, and this substantial connection must come out by an action of the defendant itself purposely directed toward the forum state. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for 7 of 9 FILED: NEW YORK COUNTY CLERK 04/05/2018 11:52 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 04/05/2018 the market in the forum State, in the forum State, advertising establishing channels for providing regular advice to customers in the forum State, or marketing the product to a distributor who has agreed to serve as the sales agent in the forum State. But a defendant's awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. See, Memorandum of Law. Here. there is no indication that Marine precured any purposeful affiliation with New York, and its connection with New York in this matter arose from Paul's decision to transport Marine's product to New York. 31. Here, Marine's percentage of New York sales was less than 0.5%. In addition, there is no indication that Marine pursued any purposeful affiliation with New York in 2008. Its only connection with New York at the time arose from Paul's decision, sometime after the purchase, to apparently sell the product to defendant Skylift. This does not meet the standard to assert jurisdiction against Marine. See, Memorandum of Law. 32. Where only a small percentage (less than 1%, totaling $9,000) of a nondomiciliary total sales were to a wholesaler located New York, and those transactions were unrelated to the transaction which caused injury, that minimal business activity could not be construed as rising to the level of doing or soliciting business in New York, and thus jurisdiction was not found. See, Memorandum of Law. The mere likelihood that a product would find its way into New York was insufficient to assert jurisdiction. See, Memorandum of Law. 33. Marine's contacts with New York are similar to those in Murdock. Less than 0.5% of the total sales are directed to New York. That minimal contact cannot be deemed to indicate that Marine had sufficient minimum contacts with New York to assert jurisdiction. 34. Marine does not have sufficient, minimal activity in New York forNew York to assert jurisdiction as to Marine. Marine solicited no business in New York, have no salespersons 8 of 9 FILED: NEW I YORK COUNTY CLERK 04/05/2018 11:52 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 04/05/2018 or advertising in New York, owned no property in New York, and has no bank accounts in New York. Therefore, the Due Process clause of the Constitution does not permit jurisdiction over Marine. See, Memorandum of Law. CONCLUSION WHEREFORE, for the reasons set forth herein, in the accompanying affidavit of David F. Tavella with exhibits, and the affidavit of Thomas Benton, Marine's motion to dismiss should be granted, together with such other and further relief as this court deems just and proper. Dated: Garden City, New York April 4, 2018 David Tavella 9 of 9