Preview
FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015
NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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MIL-SPEC INDUSTRIES CORP.,
Plaintiff,
AFFIRMATION IN
-against- OPPOSITION & REPLY
EXPANSION INDUSTRIES, LLC and Hon. Denise L. Sher
RICHARD A. SMISSEN, Individually, JOHN DOES 1-X IAS Part 36
(SUCH PERSONS BEING PRESENTLY UNKNOWN)
and CSC LEASING CO., Return Date: 3/12/2018
Defendants.
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DANIEL A. SHAFER, being an attorney duly admitted to practice law in the State of
New York, affirms the following statements to be true under the penalties of perjury:
1. I am an associate with the law firm KETOVER & ASSOCIATES, LLC, attorneys
of record for the Defendants EXPANSION INDUSTRIES, LLC (hereinafter referred to as
"EXPANSION"
defendant "EXPANSION"), RICHARD A. SMISSEN (hereinafter referred to as defendant
"SMISSEN") and CSC LEASING CO. (hereinafter referred to as defendant "CSC"), and as
such am familiar with the facts and circumstances described herein based upon my
communications with the Defendants and upon my review of the file maintained in my office
except as to those matters stated to be upon information and belief, and as to those matters I
believe them to be true.
2. I submit this Affirmation in Opposition to the Plaintiff's submitted cross-motion
arguing new grounds for summary judgment pursuant to CPLR §3211 and CPLR §3212 in
addition to its previously filed motion for summary judgment stillpending before this Court,
Defendants'
as well as in further support of the motion seeking, pursuant to CPLR §3211 and
CPLR $3212, as well as all other relevant statutes and case law precedent, (a) dismissal of the
Ketover LLC
8 Associates,
Attorneys
stLars 1
1226Franklin
Avenue
Garden
City,NY11630
616.877.2000
1 of 31
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Plaintiff's First Cause of Action listed in the Verified Complaint, ''Declaratory Judgment"; (b)
dismissal of the Plaintiff's Second Cause of Action listed in the Verified Complaint,
"Slander"; and (c) dismissal of the Plaintiff's Third Cause of Action listed in the Verified
Complaint, "Piercing the Corporate Veil"; along with such other and further relief as this
Court may deem just, proper, necessary and equitable.
PROCEDURAL ISSUE
3. Before delving into the substance of the within opposition and reply, your
affirmant must first bring to the Court's attention and address a procedural issue with respect
to the Plaintiff's decision to file a new cross-motion to supplement its already pending motion
for summary judgment previously filed in this matter.
4. it is submitted that the Plaintiff's of a new cross-
Specifically, respectfully filing
motion seeking the same relief of summary judgment is procedurally improper, and any
arguments made by the Plaintiff as part of itscross-motion should be disregarded.
5. Before addressing this issue further, the Defendant wishes to acknowledge that the
Affirmation of Darius Marzec, Esq. submitted by the Plaintiff in support of its cross-motion
Defendants'
also includes arguments which serve as opposition to the previously filed motion
seeking dismissal of the Plaintiff's causes of action. It isnot the Defendant's position that the
Defendants'
arguments raised by Plaintiff in opposition to the motion should be disregarded
the but that arguments made the Plaintiff in connection with its cross-
by Court, only any by
motion application itself should be disregarded as procedurally improper and defective.
6. The Plaintiff's submitted cross-motion alleges three new grounds for summary
judgment dismissing the Defendant's counterclaims, to wit: (a) "Expansion Industries, LLC
has been cancelled and is no longer a viable litigant"; (b) "no privity of contract exists because
Ketover
& Associates,
LLC
atLast
Attorneys 2
1226Franklin
Avenue
City,NY11530
Garden
616.677.2000
2 of 31
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Plaintiff and [Defendant Richard] Smissen"; and (c) "Expansion Industries, LLC has no
standing to maintain such claims".
7. It has been long-held in the courts of New York that a party moving for summary
judgment cannot subsequently move for summary judgment again on different grounds when
"new"
the moving party had the ability to move for summary judgment on those grounds at
the time of its original application for summary judgment. This standard has been used by the
courts in New York for more than fifty years, dating back to at least the matter of Levitz v.
(13t
Robbins Music Corp., 17 A.D.2d 801, 232 N.Y.S.2d 769 Dept., 1962), where the court
upheld the denial of the defendant's second summary judgment motion which was based on
legal arguments that could have been previously made in the defendant's first summary
judgment motion, stating: "Parties will not be permitted to make successive fragmentary
attacks. upon a cause of action but must assert all available grounds when moving for
summary judgment. There can be no reservation of any issue to be used upon any subsequent
judgment."
motion for summary Levitz at 770-771.
(1st
8. See also Phoenix Four v. Albertini, 245 A.D.2d 166, 665 N.Y.S.2d 893 Dept.,
1997), where the Appellate Division followed the precedent set by the court in Levitz and
similarly upheld the denial of the plaintiff's subsequent summary judgment application,
stating: "The IAS Court properly denied the plaintiffs motion for summary judgment since
the motion was based on matters that could have been, but were not, raised in an earlier
interest."
summary judgment motion by plaintiffs predecessor in Phoenix Four at 167
(internal citation omitted).
9. This principle of not permitting successive summary judgment motions continues
(2nd
to the present day. The matter of Vinar v Litman, 110 A.D.3d 867, 972 N.Y.S.2d 704
Dept., 2013) is particularly on-point with respect to the instant matter. In Vinar, the Appellate
Ketover
5 Associates,
LLC
atLaw
Attorneys 3
1225Franklin
Avenue
ardenCI ,NY
NY11530
515.577.2000
3 of 31
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Division upheld the denial of a second summary judgment application that was submitted by
defendants'
the defendants following the denial of the first motion for summary judgment,
espousing the well-settled principle: "'Generally, successive motions for summary judgment
should not be entertained, absent a showing of newly discovered evidence or other sufficient
cause'."
Vinar at 868.
10. The defendants in Vinar claimed that there was newly discovered evidence which
afforded them the ability to make the second motion, but the court rejected this proposition
and held that the allegedly new evidence was in fact available to the defendants at the time
that the first summary judgment motion was made, stating: "... such evidence is not 'newly
discovered'
simply because itwas not submitted on the previous motion. Rather, the evidence
that was not submitted in support of the previous summary judgment motion must be used to
establish facts that were not available to the party at the time it made its initial motion
for summary judgment and which could not have been established through alternative
evidentiary means. Indeed, 'successive motions for summary judgment should not be made
based upon facts or arguments which could have been submitted on the original motion for
judgment'."
summary Vinar at 868-869 (internal citations omitted) (emphasis added).
11. The scenario in Vinar is precisely on point with the instant matter before this
Court. Plaintiff herein has filed a cross-motion which effectively serves as a second motion
for summary judgment, as it asserts three new arguments for why summary judgment should
be granted in its favor. All three of the arguments could have been made at the time of the
Plaintiff's original summary judgment application, and the Plaintiff's claim that it "just
learned"
supposedly new information is without merit.
12. Before even addressing the allegedly new information that was purportedly "just
learned"
by the Plaintiff which serves as the basis for two of the Plaintiffs three new
Ketover
5 Associates,
LLC
Anorneys
atLevy 4
1225Franklin
Avenue
Garden
City,NY11530
516.677.2000
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arguments for summary judgment, first we must address the Plaintiff's new argument that the
counterclaims of Defendant SMISSEN should be dismissed because of a lack of privity with
the Plaintiff. Not only is this argument not based on any allegedly new information, but it is
quite plainly an argument that could have been made at the time of the Plaintiff's original
summary judgment motion. The transaction between the parties that serves at the underlying
background for the instant action occurred on May 8, 2015 (see the Plaintiff's Verified
Amended Complaint, a copy of which was previously attached to the Plaintiff's first summary
judgment motion as its "Exhibit A", at paragraph 12). At no time in the nearly three (3) years
since that date has the Plaintiff ever formally asserted a claim that there is no privity between
the Plaintiff and Defendant SMISSEN (and indeed, the Plaintiff's Verified Amended
Complaint even affirmatively states that Defendant SMISSEN was a party to the underlying
"contract"). The Plaintiff had ample opportunity and the ability to allege a lack of privity as a
ground for summary judgment in its firstapplication, but it chose not to do so. The Plaintiff
cannot now, on a second subsequent summary judgment application, make this allegation that
could have been properly made as part of its firstapplication. This is precisely what the court
attack."
in Levitz held was impermissible; a "successive fragmentary A party "must assert all
judgment"
available grounds when moving for summary and cannot engage in "reservation of
any issue to be used upon any subsequent motion for summary judgment". Levitz at 770-771.
13. It is thus respectfully submitted that the failure of the Plaintiff to allege a lack of
privity in support of summary judgment in its first summary judgment motion necessarily
prohibits the Plaintiff from making this argument in its second summary judgment
application.
14. Turning to the two remaining new grounds for summary judgment asserted by the
Plaintiff in its cross-motion, to wit: that "Expansion Industries, LLC has been cancelled and is
tt Associates,
Ketover LLC
atLaw
Attorneys 5
Avenue
1225Franklin
City,NY11530
Garden
616.522.2000
5 of 31
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litigant"
no longer a viable and that "Expansion Industries, LLC has no standing to maintain
such claims", both arguments are allegedly based on information that the Plaintiff claims to
"have just learned", namely that Defendant EXPANSION is allegedly no longer in operation.
15. Putting aside the fact that this claim is categorically false (the substance of the
Plaintiff's claim and its falsity is addressed in the next section below, in a discussion
regarding lack of merit of the Plaintiff's new grounds for summary judgment, should the
Court choose not to dismiss the Plaintiff's cross-motion arguments for being procedurally
"new"
defective), much like the evidence in the Vinar matter, this information that the
Plaintiff relies upon for these two new arguments for summary judgment does not constitute
discovered"
"newly evidence nor "facts that were not available to the party at the time itmade
its initialmotion for summary judgment and which could not have been established through
alternative evidentiary means".
16. In support of these arguments, the Plaintiff submits a printout from the Virginia
Council for Corporations which allegedly indicates that Defendant EXPANSION's status as a
Foreign Limited Liability Corporation in the Commonwealth of Virginia has been cancelled.
However, upon review of the printout, in the section containing the "Registered
Office" Date"
Agent/Registered information, the Court will note that the "Effective is listed as
"7/13/2017". Please see the aforementioned printout, a copy of which is attached to the
Plaintiff's cross-motion as its "Exhibit N".
17. In other words, the cancellation of Defendant EXPANSION's status as a Foreign
Limited Liability Corporation in the Commonwealth of Virginia is alleged to have occurred in
'
July 2017, some six (6) months prior to the Plaintiff filing its first motion for summary
judgment (having been filed by the Plaintiff on January 19, 2018). This information upon
which the Plaintiff bases its second summary judgment application was readily available to
Ketover
&Associates,
LLC
Attorneys
atLaw 6
1225Franklin
Avenue
Garden
City,NY11530
516.877.2000
6 of 31
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the Plaintiff for several months before making its first motion, and despite the Plaintiff
learned"
claiming that it "just of this information, it cannot be claimed to be information that
means"
"could not have been established through alternative evidentiary prior to filing its first
summary judgment application. Nothing prevented or prohibited the Plaintiff from
conducting a corporate search with respect to the status of Defendant EXPANSION during
those several months; information as to the corporate status of a business entity are public
record, are readily available to anyone, and can be found in a few short minutes through the
states' departments'
various respective websites. That the Plaintiff apparently chose not to
seek out this information until after already filing its first summary judgment motion is no
one's fault but its own.
18. It is respectfully submitted that as the Plaintiff has not presented any true "newly
discovered"
evidence which includes "facts that were not available to the party at the time it
made its initial motion for summary judgment and which could not have been established
through alternative evidentiary means", the Plaintiff's second summary judgment application
made via itscross-motion is not permissible as a matter of law.
19. As a final note with respect to the procedural impropriety of the Plaintiff filing a
second motion for summary judgment, the Defendants wish to acknowledge that given the
frivolity of the Plaintiff's actions in filing its cross-motion as outlined above, it iswell within
Defendants'
the rights to bring an application before this Court requesting that sanctions be
levied against the Plaintiff pursuant to 22 NYCRR §130-1.1. However, given the already
convoluted string of pending applications before the Court, the Defendants do not wish to
further burden the Court's time or resources with an additional application. However, the
Defendant does suggest that the Court take into consideration the frivolous nature of the
Plaintiff's cross-motion and should the Court elect sua sponte to issue any sanctions against
Ketever LLC
&Associates,
atLate
Attorneys 7
1226Franklin
Avenue
City,NY11530
Garden
516.677.2000
7 of 31
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the Plaintiff pursuant to itsauthority under 22 NYCRR §130-1.1, that any award of sanctions
should be directed to be paid to The Lawyers Fund for Client Protection or any such similar
public service organization as the Court may feel appropriate.
20. As discussed above, it isrespectfully submitted that as the Plaintiff's cross-motion
is impermissible, procedurally improper and should never have been brought before this
Court, the arguments made in connection with the submitted cross-motion should not be
considered this Court and those portions of the Plaintiff's papers which constitute itscross-
by
motion should be dismissed as a matter of law.
IN OPPOSITION TO "NEW"
PLAINTIFF'S
SUMMARY JUDGMENT ARGUMENTS
21. Assuming arguendo that the Court decides that the Plaintiff's cross-motion is
permissible despite it being procedurally improper, and the arguments made therein are to be
Defendants'
considered by the Court, please allow the following to serve as opposition to
those arguments.
22. As the Court is aware, the Plaintiff previously filed a motion seeking summary
Defendants'
judgment with respect to the multiple counterclaims alleging breaches of
warranty pursuant to the Uniform Commercial Code. That motion and the arguments made
Defendants'
therein have previously been addressed by the Affirmation in Opposition, duly
filed with the Court on February 7, 2018.
23. The Plaintiff's new cross-motion argues in support of summary judgment on three
(3) new grounds that it either chose to ignore or failed to argue in its original application.
Specifically, the Plaintiff claims that summary judgment in its favor and dismissal of the
Defendants'
counterclaims is warranted because: (a) "Expansion Industries, LLC has been
Ketover
&Associates,
LLC
atLate
Attorneys 8
1225Franklin
Avenue
Garden
City,NY11630
516.077.2000
8 of 31
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cancelled and is no longer a viable litigant"; (b) "no privity of contract exists because Plaintiff
and [Defendant Richard] Smissen"; and (c) "Expansion Industries, LLC has no standing to
maintain such claims".
"new"
24. As will be addressed below, all three of the aforementioned arguments
made by the Plaintiff are wholly without merit and not one of them is a valid basis for
Defendants'
dismissal of the counter-claims. But first,the Defendants would like to bring to
the Court's attention that the Plaintiff offers no legal arguments in support of dismissal on
these grounds. Plaintiff fails to cite any legal authority, whether through any statute, caselaw
citation, or even hornbook reference, which would provide a legal foundation for their
arguments. The Court is respectfully referred to the Affirmation of Darius Marzec, Esq.,
pages 4-5, paragraphs 15-18. It is submitted that without any legal basis, foundation, or even
"new" Defendants'
basic legal argument, these grounds for dismissal of the counterclaims are
defective on their face and should be disregarded by the Court; Plaintiff has absolutely failed
"new"
to even attempt to make any sort of prima facie case in support of these arguments.
"substance" "new"
25. Turning to the of the Plaintiff's arguments, we must first
address the claims by the Plaintiff that Defendant EXPANSION "has been cancelled and no
lawsuit"
longer constitutes an entity or a legal person that can maintain a and that "Expansion
exists."
Industries. LLC is no longer in business and no longer (See Affirmation of Darius
Marzec, Esq., page 4, paragraph 13.) Both of these assertions are 100% false and wholly
incorrect.
26. The Plaintiff's claims are apparently based solely on its supposedly recent
discovery of information that Defendant EXPANSION is no longer registered as a Foreign
Limited Liability Company with the Virginia Council for Corporations. The Plaintiff attaches
N"
to its cross-motion as its "Exhibit a copy of the printout confirming this cancellation.
Ketover LLC
&Associates,
Attorneys
atLate 9
Avenue
1226Frantdln
Garden
City,NY11530
616.677.2000
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27. For the Plaintiff to claim that this somehow means that EXPANSION "no longer
exists"
shows that Plaintiff evidently has little to no understanding of how corporations and
corporate registration works. As Defendant SMISSEN (the principal of Defendant
EXPANSION testified to at his deposition, EXPANSION is a Delaware-based corporation
that was registered to do business in Virginia:
Q. When was Expansion Industries organized?
A. In September of 2013.
Q. What is the corporate form?
A. Delaware, LLC. I am the sole member.
Q. Are you registered to do business in the State of New York?
A. I don't believe so.
Q. Are you registered to do business, Expansion Industries, in Virginia?
A. Yes.
Please see the Deposition transcript of Richard Smissen, most recently attached to the
Plaintiff's cross-moving papers as its "Exhibit A", at Page 11, lines 13 through 23.
"A"
28. In addition, please find attached hereto and made a part hereof as Exhibit a
printout from the Delaware Division of Corporations confirming Defendant EXPANSION as
a currently registered and active limited liability corporation.
29. As a limited-liability corporation based in Delaware, but doing business in
Virginia, EXPANSION, was properly registered with the Virginia Council of Corporations as
a foreign limited liability corporation, as it was based in Virginia. EXPANSION is no longer
based in Virginia, and no longer does business in Virginia, thus its registration as a foreign
limited liability corporation with Virginia was cancelled.
Ketover LLC
&Associates,
st Laur
Attorneys 10
Avenue
1225Franklin
Garden
City,NY11530
516.57
7,2000
10 of 31
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exists"
30. However, by no means does this mean that EXPANSION "no longer or has
been cancelled as a limited liability company. Rather, as Defendant EXPANSION now
regularly does business in the State of Texas, and not in the Commonwealth of Virginia, it is
properly registered with the Secretary of State of Texas as a foreign limited liability
"B"
corporation. Attached hereto and made a part hereof as Exhibit please find
documentation from the Office of the Secretary of State of Texas confirming Defendant
EXPANSION's status as an active foreign limited liability company in the State of Texas.
31. Plaintiff's claim that Defendant EXPANSION "is no longer in business and no
exists"
longer is completely and absolutely false. If the Plaintiff had bothered to actually
check the Division of Corporations registry for Delaware, the state where EXPANSION is
organized (of which the Plaintiff was well-aware based on the testimony of Defendant
SMISSEN), itwould have seen that its claim is absolutely and completely false. Plaintiff's
attempt to seek summary judgment on a basis for which it has not engaged in even a
rudimentary level of due diligence borders on frivolous, and the Defendants again respectfully
"new"
request that the potentially frivolous nature of Plaintiff's grounds for summary
judgment - which is the basis the Plaintiff relies on for a new
only bringing summary
judgment application of cross-motion in the first place - be taken into consideration
by way
by this Court.
32. As the Plaintiff's claim that Defendant EXPANSION "is no longer in business and
exists"
no longer is demonstrably false, and as that false claim is the basis for two of its three
"new"
arguments in support of summary judgment, to wit: that "Expansion Industries, LLC
litigant"
has been cancelled and is no longer a viable and that "Expansion Industries, LLC has
no standing to maintain such claims", those arguments must be disregarded by this Court.
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"new"
33. Turning to the final argument in support of summary judgment made by the
Plaintiff, namely that "no privity of contract exists because Plaintiff and [Defendant Richard]
Smissen"
and thus Defendant SMISSEN's counterclaims should be dismissed, your affirmant
first wishes to call attention to the fact that the Plaintiff does not argue that the counterclaims
of Defendant EXPANSION should be dismissed on this basis, nor that the counterclaims of
Defendant CSC should be dismissed on this basis. The Plaintiff limits this argument only to
Defendant SMISSEN.
34. The Plaintiff now argues that "it is beyond dispute that Mr. Smissen was not a
Leasing."
party to any transaction between Mil-Spec and CSC (See Affirmation of Darius
Marzec, Esq., pages 5, paragraph 17.) This argument now being made by the Plaintiff is at
best dubious, considering the prior allegations of the Plaintiff. To start, the Plaintiff's own
Verified Amended Complaint alleges as follows: "On or about May 8, 2015, Smissen and
EXPANSION contracted with MIL-SPEC on a purchase order of three Ammo Load Mark III
[sic]."
machines and certain components ("machines") and components Please see the
Plaintiff's Verified Amended Complaint, a copy of which was previously attached to the
Plaintiff's first summary judgment motion as its "Exhibit A", at paragraph 12.
Preview
FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU —X ---------------------------------------------------------------------X Index No.: 604712/2015 MIL-SPEC INDUSTRIES CORP., Plaintiff, AFFIRMATION IN -against- OPPOSITION & REPLY EXPANSION INDUSTRIES, LLC and Hon. Denise L. Sher RICHARD A. SMISSEN, Individually, JOHN DOES 1-X IAS Part 36 (SUCH PERSONS BEING PRESENTLY UNKNOWN) and CSC LEASING CO., Return Date: 3/12/2018 Defendants. X ---------------------------------------------------------------------X DANIEL A. SHAFER, being an attorney duly admitted to practice law in the State of New York, affirms the following statements to be true under the penalties of perjury: 1. I am an associate with the law firm KETOVER & ASSOCIATES, LLC, attorneys of record for the Defendants EXPANSION INDUSTRIES, LLC (hereinafter referred to as "EXPANSION" defendant "EXPANSION"), RICHARD A. SMISSEN (hereinafter referred to as defendant "SMISSEN") and CSC LEASING CO. (hereinafter referred to as defendant "CSC"), and as such am familiar with the facts and circumstances described herein based upon my communications with the Defendants and upon my review of the file maintained in my office except as to those matters stated to be upon information and belief, and as to those matters I believe them to be true. 2. I submit this Affirmation in Opposition to the Plaintiff's submitted cross-motion arguing new grounds for summary judgment pursuant to CPLR §3211 and CPLR §3212 in addition to its previously filed motion for summary judgment stillpending before this Court, Defendants' as well as in further support of the motion seeking, pursuant to CPLR §3211 and CPLR $3212, as well as all other relevant statutes and case law precedent, (a) dismissal of the Ketover LLC 8 Associates, Attorneys stLars 1 1226Franklin Avenue Garden City,NY11630 616.877.2000 1 of 31 FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018 Plaintiff's First Cause of Action listed in the Verified Complaint, ''Declaratory Judgment"; (b) dismissal of the Plaintiff's Second Cause of Action listed in the Verified Complaint, "Slander"; and (c) dismissal of the Plaintiff's Third Cause of Action listed in the Verified Complaint, "Piercing the Corporate Veil"; along with such other and further relief as this Court may deem just, proper, necessary and equitable. PROCEDURAL ISSUE 3. Before delving into the substance of the within opposition and reply, your affirmant must first bring to the Court's attention and address a procedural issue with respect to the Plaintiff's decision to file a new cross-motion to supplement its already pending motion for summary judgment previously filed in this matter. 4. it is submitted that the Plaintiff's of a new cross- Specifically, respectfully filing motion seeking the same relief of summary judgment is procedurally improper, and any arguments made by the Plaintiff as part of itscross-motion should be disregarded. 5. Before addressing this issue further, the Defendant wishes to acknowledge that the Affirmation of Darius Marzec, Esq. submitted by the Plaintiff in support of its cross-motion Defendants' also includes arguments which serve as opposition to the previously filed motion seeking dismissal of the Plaintiff's causes of action. It isnot the Defendant's position that the Defendants' arguments raised by Plaintiff in opposition to the motion should be disregarded the but that arguments made the Plaintiff in connection with its cross- by Court, only any by motion application itself should be disregarded as procedurally improper and defective. 6. The Plaintiff's submitted cross-motion alleges three new grounds for summary judgment dismissing the Defendant's counterclaims, to wit: (a) "Expansion Industries, LLC has been cancelled and is no longer a viable litigant"; (b) "no privity of contract exists because Ketover & Associates, LLC atLast Attorneys 2 1226Franklin Avenue City,NY11530 Garden 616.677.2000 2 of 31 FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018 Plaintiff and [Defendant Richard] Smissen"; and (c) "Expansion Industries, LLC has no standing to maintain such claims". 7. It has been long-held in the courts of New York that a party moving for summary judgment cannot subsequently move for summary judgment again on different grounds when "new" the moving party had the ability to move for summary judgment on those grounds at the time of its original application for summary judgment. This standard has been used by the courts in New York for more than fifty years, dating back to at least the matter of Levitz v. (13t Robbins Music Corp., 17 A.D.2d 801, 232 N.Y.S.2d 769 Dept., 1962), where the court upheld the denial of the defendant's second summary judgment motion which was based on legal arguments that could have been previously made in the defendant's first summary judgment motion, stating: "Parties will not be permitted to make successive fragmentary attacks. upon a cause of action but must assert all available grounds when moving for summary judgment. There can be no reservation of any issue to be used upon any subsequent judgment." motion for summary Levitz at 770-771. (1st 8. See also Phoenix Four v. Albertini, 245 A.D.2d 166, 665 N.Y.S.2d 893 Dept., 1997), where the Appellate Division followed the precedent set by the court in Levitz and similarly upheld the denial of the plaintiff's subsequent summary judgment application, stating: "The IAS Court properly denied the plaintiffs motion for summary judgment since the motion was based on matters that could have been, but were not, raised in an earlier interest." summary judgment motion by plaintiffs predecessor in Phoenix Four at 167 (internal citation omitted). 9. This principle of not permitting successive summary judgment motions continues (2nd to the present day. The matter of Vinar v Litman, 110 A.D.3d 867, 972 N.Y.S.2d 704 Dept., 2013) is particularly on-point with respect to the instant matter. In Vinar, the Appellate Ketover 5 Associates, LLC atLaw Attorneys 3 1225Franklin Avenue ardenCI ,NY NY11530 515.577.2000 3 of 31 FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018 Division upheld the denial of a second summary judgment application that was submitted by defendants' the defendants following the denial of the first motion for summary judgment, espousing the well-settled principle: "'Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause'." Vinar at 868. 10. The defendants in Vinar claimed that there was newly discovered evidence which afforded them the ability to make the second motion, but the court rejected this proposition and held that the allegedly new evidence was in fact available to the defendants at the time that the first summary judgment motion was made, stating: "... such evidence is not 'newly discovered' simply because itwas not submitted on the previous motion. Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means. Indeed, 'successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for judgment'." summary Vinar at 868-869 (internal citations omitted) (emphasis added). 11. The scenario in Vinar is precisely on point with the instant matter before this Court. Plaintiff herein has filed a cross-motion which effectively serves as a second motion for summary judgment, as it asserts three new arguments for why summary judgment should be granted in its favor. All three of the arguments could have been made at the time of the Plaintiff's original summary judgment application, and the Plaintiff's claim that it "just learned" supposedly new information is without merit. 12. Before even addressing the allegedly new information that was purportedly "just learned" by the Plaintiff which serves as the basis for two of the Plaintiffs three new Ketover 5 Associates, LLC Anorneys atLevy 4 1225Franklin Avenue Garden City,NY11530 516.677.2000 4 of 31 FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018 arguments for summary judgment, first we must address the Plaintiff's new argument that the counterclaims of Defendant SMISSEN should be dismissed because of a lack of privity with the Plaintiff. Not only is this argument not based on any allegedly new information, but it is quite plainly an argument that could have been made at the time of the Plaintiff's original summary judgment motion. The transaction between the parties that serves at the underlying background for the instant action occurred on May 8, 2015 (see the Plaintiff's Verified Amended Complaint, a copy of which was previously attached to the Plaintiff's first summary judgment motion as its "Exhibit A", at paragraph 12). At no time in the nearly three (3) years since that date has the Plaintiff ever formally asserted a claim that there is no privity between the Plaintiff and Defendant SMISSEN (and indeed, the Plaintiff's Verified Amended Complaint even affirmatively states that Defendant SMISSEN was a party to the underlying "contract"). The Plaintiff had ample opportunity and the ability to allege a lack of privity as a ground for summary judgment in its firstapplication, but it chose not to do so. The Plaintiff cannot now, on a second subsequent summary judgment application, make this allegation that could have been properly made as part of its firstapplication. This is precisely what the court attack." in Levitz held was impermissible; a "successive fragmentary A party "must assert all judgment" available grounds when moving for summary and cannot engage in "reservation of any issue to be used upon any subsequent motion for summary judgment". Levitz at 770-771. 13. It is thus respectfully submitted that the failure of the Plaintiff to allege a lack of privity in support of summary judgment in its first summary judgment motion necessarily prohibits the Plaintiff from making this argument in its second summary judgment application. 14. Turning to the two remaining new grounds for summary judgment asserted by the Plaintiff in its cross-motion, to wit: that "Expansion Industries, LLC has been cancelled and is tt Associates, Ketover LLC atLaw Attorneys 5 Avenue 1225Franklin City,NY11530 Garden 616.522.2000 5 of 31 FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018 litigant" no longer a viable and that "Expansion Industries, LLC has no standing to maintain such claims", both arguments are allegedly based on information that the Plaintiff claims to "have just learned", namely that Defendant EXPANSION is allegedly no longer in operation. 15. Putting aside the fact that this claim is categorically false (the substance of the Plaintiff's claim and its falsity is addressed in the next section below, in a discussion regarding lack of merit of the Plaintiff's new grounds for summary judgment, should the Court choose not to dismiss the Plaintiff's cross-motion arguments for being procedurally "new" defective), much like the evidence in the Vinar matter, this information that the Plaintiff relies upon for these two new arguments for summary judgment does not constitute discovered" "newly evidence nor "facts that were not available to the party at the time itmade its initialmotion for summary judgment and which could not have been established through alternative evidentiary means". 16. In support of these arguments, the Plaintiff submits a printout from the Virginia Council for Corporations which allegedly indicates that Defendant EXPANSION's status as a Foreign Limited Liability Corporation in the Commonwealth of Virginia has been cancelled. However, upon review of the printout, in the section containing the "Registered Office" Date" Agent/Registered information, the Court will note that the "Effective is listed as "7/13/2017". Please see the aforementioned printout, a copy of which is attached to the Plaintiff's cross-motion as its "Exhibit N". 17. In other words, the cancellation of Defendant EXPANSION's status as a Foreign Limited Liability Corporation in the Commonwealth of Virginia is alleged to have occurred in ' July 2017, some six (6) months prior to the Plaintiff filing its first motion for summary judgment (having been filed by the Plaintiff on January 19, 2018). This information upon which the Plaintiff bases its second summary judgment application was readily available to Ketover &Associates, LLC Attorneys atLaw 6 1225Franklin Avenue Garden City,NY11530 516.877.2000 6 of 31 FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018 the Plaintiff for several months before making its first motion, and despite the Plaintiff learned" claiming that it "just of this information, it cannot be claimed to be information that means" "could not have been established through alternative evidentiary prior to filing its first summary judgment application. Nothing prevented or prohibited the Plaintiff from conducting a corporate search with respect to the status of Defendant EXPANSION during those several months; information as to the corporate status of a business entity are public record, are readily available to anyone, and can be found in a few short minutes through the states' departments' various respective websites. That the Plaintiff apparently chose not to seek out this information until after already filing its first summary judgment motion is no one's fault but its own. 18. It is respectfully submitted that as the Plaintiff has not presented any true "newly discovered" evidence which includes "facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means", the Plaintiff's second summary judgment application made via itscross-motion is not permissible as a matter of law. 19. As a final note with respect to the procedural impropriety of the Plaintiff filing a second motion for summary judgment, the Defendants wish to acknowledge that given the frivolity of the Plaintiff's actions in filing its cross-motion as outlined above, it iswell within Defendants' the rights to bring an application before this Court requesting that sanctions be levied against the Plaintiff pursuant to 22 NYCRR §130-1.1. However, given the already convoluted string of pending applications before the Court, the Defendants do not wish to further burden the Court's time or resources with an additional application. However, the Defendant does suggest that the Court take into consideration the frivolous nature of the Plaintiff's cross-motion and should the Court elect sua sponte to issue any sanctions against Ketever LLC &Associates, atLate Attorneys 7 1226Franklin Avenue City,NY11530 Garden 516.677.2000 7 of 31 FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018 the Plaintiff pursuant to itsauthority under 22 NYCRR §130-1.1, that any award of sanctions should be directed to be paid to The Lawyers Fund for Client Protection or any such similar public service organization as the Court may feel appropriate. 20. As discussed above, it isrespectfully submitted that as the Plaintiff's cross-motion is impermissible, procedurally improper and should never have been brought before this Court, the arguments made in connection with the submitted cross-motion should not be considered this Court and those portions of the Plaintiff's papers which constitute itscross- by motion should be dismissed as a matter of law. IN OPPOSITION TO "NEW" PLAINTIFF'S SUMMARY JUDGMENT ARGUMENTS 21. Assuming arguendo that the Court decides that the Plaintiff's cross-motion is permissible despite it being procedurally improper, and the arguments made therein are to be Defendants' considered by the Court, please allow the following to serve as opposition to those arguments. 22. As the Court is aware, the Plaintiff previously filed a motion seeking summary Defendants' judgment with respect to the multiple counterclaims alleging breaches of warranty pursuant to the Uniform Commercial Code. That motion and the arguments made Defendants' therein have previously been addressed by the Affirmation in Opposition, duly filed with the Court on February 7, 2018. 23. The Plaintiff's new cross-motion argues in support of summary judgment on three (3) new grounds that it either chose to ignore or failed to argue in its original application. Specifically, the Plaintiff claims that summary judgment in its favor and dismissal of the Defendants' counterclaims is warranted because: (a) "Expansion Industries, LLC has been Ketover &Associates, LLC atLate Attorneys 8 1225Franklin Avenue Garden City,NY11630 516.077.2000 8 of 31 FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018 cancelled and is no longer a viable litigant"; (b) "no privity of contract exists because Plaintiff and [Defendant Richard] Smissen"; and (c) "Expansion Industries, LLC has no standing to maintain such claims". "new" 24. As will be addressed below, all three of the aforementioned arguments made by the Plaintiff are wholly without merit and not one of them is a valid basis for Defendants' dismissal of the counter-claims. But first,the Defendants would like to bring to the Court's attention that the Plaintiff offers no legal arguments in support of dismissal on these grounds. Plaintiff fails to cite any legal authority, whether through any statute, caselaw citation, or even hornbook reference, which would provide a legal foundation for their arguments. The Court is respectfully referred to the Affirmation of Darius Marzec, Esq., pages 4-5, paragraphs 15-18. It is submitted that without any legal basis, foundation, or even "new" Defendants' basic legal argument, these grounds for dismissal of the counterclaims are defective on their face and should be disregarded by the Court; Plaintiff has absolutely failed "new" to even attempt to make any sort of prima facie case in support of these arguments. "substance" "new" 25. Turning to the of the Plaintiff's arguments, we must first address the claims by the Plaintiff that Defendant EXPANSION "has been cancelled and no lawsuit" longer constitutes an entity or a legal person that can maintain a and that "Expansion exists." Industries. LLC is no longer in business and no longer (See Affirmation of Darius Marzec, Esq., page 4, paragraph 13.) Both of these assertions are 100% false and wholly incorrect. 26. The Plaintiff's claims are apparently based solely on its supposedly recent discovery of information that Defendant EXPANSION is no longer registered as a Foreign Limited Liability Company with the Virginia Council for Corporations. The Plaintiff attaches N" to its cross-motion as its "Exhibit a copy of the printout confirming this cancellation. Ketover LLC &Associates, Attorneys atLate 9 Avenue 1226Frantdln Garden City,NY11530 616.677.2000 9 of 31 FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018 27. For the Plaintiff to claim that this somehow means that EXPANSION "no longer exists" shows that Plaintiff evidently has little to no understanding of how corporations and corporate registration works. As Defendant SMISSEN (the principal of Defendant EXPANSION testified to at his deposition, EXPANSION is a Delaware-based corporation that was registered to do business in Virginia: Q. When was Expansion Industries organized? A. In September of 2013. Q. What is the corporate form? A. Delaware, LLC. I am the sole member. Q. Are you registered to do business in the State of New York? A. I don't believe so. Q. Are you registered to do business, Expansion Industries, in Virginia? A. Yes. Please see the Deposition transcript of Richard Smissen, most recently attached to the Plaintiff's cross-moving papers as its "Exhibit A", at Page 11, lines 13 through 23. "A" 28. In addition, please find attached hereto and made a part hereof as Exhibit a printout from the Delaware Division of Corporations confirming Defendant EXPANSION as a currently registered and active limited liability corporation. 29. As a limited-liability corporation based in Delaware, but doing business in Virginia, EXPANSION, was properly registered with the Virginia Council of Corporations as a foreign limited liability corporation, as it was based in Virginia. EXPANSION is no longer based in Virginia, and no longer does business in Virginia, thus its registration as a foreign limited liability corporation with Virginia was cancelled. Ketover LLC &Associates, st Laur Attorneys 10 Avenue 1225Franklin Garden City,NY11530 516.57 7,2000 10 of 31 FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018 exists" 30. However, by no means does this mean that EXPANSION "no longer or has been cancelled as a limited liability company. Rather, as Defendant EXPANSION now regularly does business in the State of Texas, and not in the Commonwealth of Virginia, it is properly registered with the Secretary of State of Texas as a foreign limited liability "B" corporation. Attached hereto and made a part hereof as Exhibit please find documentation from the Office of the Secretary of State of Texas confirming Defendant EXPANSION's status as an active foreign limited liability company in the State of Texas. 31. Plaintiff's claim that Defendant EXPANSION "is no longer in business and no exists" longer is completely and absolutely false. If the Plaintiff had bothered to actually check the Division of Corporations registry for Delaware, the state where EXPANSION is organized (of which the Plaintiff was well-aware based on the testimony of Defendant SMISSEN), itwould have seen that its claim is absolutely and completely false. Plaintiff's attempt to seek summary judgment on a basis for which it has not engaged in even a rudimentary level of due diligence borders on frivolous, and the Defendants again respectfully "new" request that the potentially frivolous nature of Plaintiff's grounds for summary judgment - which is the basis the Plaintiff relies on for a new only bringing summary judgment application of cross-motion in the first place - be taken into consideration by way by this Court. 32. As the Plaintiff's claim that Defendant EXPANSION "is no longer in business and exists" no longer is demonstrably false, and as that false claim is the basis for two of its three "new" arguments in support of summary judgment, to wit: that "Expansion Industries, LLC litigant" has been cancelled and is no longer a viable and that "Expansion Industries, LLC has no standing to maintain such claims", those arguments must be disregarded by this Court. %°7,""TZ%'''"" Attorneys stLate 11 1225Franklin Avenue Garden City,NY11530 2000 518.877. 11 of 31 FILED: NASSAU COUNTY CLERK 03/05/2018 03:31 PM INDEX NO. 604712/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 03/05/2018 "new" 33. Turning to the final argument in support of summary judgment made by the Plaintiff, namely that "no privity of contract exists because Plaintiff and [Defendant Richard] Smissen" and thus Defendant SMISSEN's counterclaims should be dismissed, your affirmant first wishes to call attention to the fact that the Plaintiff does not argue that the counterclaims of Defendant EXPANSION should be dismissed on this basis, nor that the counterclaims of Defendant CSC should be dismissed on this basis. The Plaintiff limits this argument only to Defendant SMISSEN. 34. The Plaintiff now argues that "it is beyond dispute that Mr. Smissen was not a Leasing." party to any transaction between Mil-Spec and CSC (See Affirmation of Darius Marzec, Esq., pages 5, paragraph 17.) This argument now being made by the Plaintiff is at best dubious, considering the prior allegations of the Plaintiff. To start, the Plaintiff's own Verified Amended Complaint alleges as follows: "On or about May 8, 2015, Smissen and EXPANSION contracted with MIL-SPEC on a purchase order of three Ammo Load Mark III [sic]." machines and certain components ("machines") and components Please see the Plaintiff's Verified Amended Complaint, a copy of which was previously attached to the Plaintiff's first summary judgment motion as its "Exhibit A", at paragraph 12.