Motion-Secondary: 729 Seventh Owner Llc v. Syed Choudhury

On May 28, 2015 a Motion-Secondary was filed involving a dispute between 729 Seventh Owner Llc, and Syed Choudhury, for Commercial (General) in the District Court of New York County.

Preview
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------X
729 SEVENTH OWNER LLC,
Index No.: 651868/15

Plaintiff,
AFFIRMATION IN OPPOSITION
-against- TO DEFENDANT'S MOTION TO
VACATE JUDGMENT AND IN
SUPPORT OF CROSS-MOTION
FOR ATTORNEY'S FEES

SYED CHOUDHURY,
Defendant.
X
------------------------------------------------------------------X

THOMAS J. McKENNA, an attorney duly admitted to practice before the Courts of the

State of New York, affirms the following to be true under penalties of perjury and pursuant to the

CPLR:

1. I am fully familiar with the facts and circumstances of this case and I submit this

Affirmation in opposition to Defendant's motion to (i)vacate the Judgment entered in this case;

and (ii) return to the Defendant any alleged excess Security Deposit. I also submit this

Affirmation in Support of Plaintiff's Cross-motion for sanctions, costs and attorney's fees from

Defendant.

2. Defendant controlled a company known as Europa Cameras & Computers, Inc.

("Europa"). Europa was a commercial tenant in a parcel of real property in Manhattan owned by

Plaintiff. Defendant also gave a personal Guaranty for the performance of Europa's obligations

under the lease.

3. Defendant's motion should be denied, and Plaintiff's cross-motion should be

granted because:

1 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

a) Defendant is estopped from re-litigating an issue that has already been decided
under the doctrine of law of the case;

b) Defendant has failed to identify any new evidence or otherwise state a
meritorious ground for vacating the judgment under CPLR §5015;

c) Defendant lacks standing to address any allegation that the Security Deposit has
not been properly applied;

d) the evidentiary record in this matter clearly and unambiguously demonstrates that
Defendant waived any right to any Security Deposit held by plaintiff and as such
Defendant's motion is frivolous as a matter of law; and

e) Defendant should be sanctioned for its willful conduct in failing to provide

discovery as previously ordered by this Court.

4. This is now the second motion by Defendant, after a lengthy period of inactivity

in this case, seeking to set aside a Judgment that was awarded to Plaintiff on August 27, 2015,

almost three years ago. The first such motion can be found at NYSCEF Doc. No. 75 and was

denied at that time. See NYSCEF Doc. No. 86. The instant motion fails to bring forth any

matter which might justify vacatur under CPLR § 5105 and makes no additional arguments that

were not already rejected by this Court. Indeed, the instant motion is unsupported by any sort of

factual affidavit which in and of itself should result in a denial of the motion.

5. The fact that Defendant and his attorney are seeking this identical relief AGAIN

at this stage is highly questionable, certainly where the Defendant has actively and successfully

sought to derail and curtail all of Plaintiff's efforts to obtain any sort of Article 52 discovery to

which itis lawfully entitled to enforce the Judgment. Defendant has directly disobeyed three

previous Orders of the Court directing Defendant to provide such lawful and proper discovery.

6. Moreover, Defendant has engaged in fraudulent transfers of property owned by

him - to his wife other than for fair value -- that otherwise might have been available to satisfy

2 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

the Judgment. Two such parcels of real estate in Yonkers, NY were so transferred on or about

December 31, 2014. See, Debtor Creditor Law, §272.

7. Defendant has time and time again willfully frustrated the attempts of Plaintiff to

obtain Article 52 post-judgment disclosure and to satisfy itsJudgment lawfully obtained in this

Court. Defendant once again is another bite at the apple - to undo the Judgment
now, attempting

that was properly entered after a full and fair opportunity to litigate, having been represented by

counsel. The fraudulent transfers presumably were made because Defendant is now seeking to

sell one of his properties and would like to do so without satisfying the Judgment entered in this

case.

BACKGROUND

8. The facts and circumstances of this case are set forth below.

9. This controversy arises out of certain unpaid monetary obligations pursuant to a

commercial Lease from Plaintiff to a company controlled by Defendant, and a Guaranty of that

"Guaranty"
Lease executed personally by the Defendant (the "Guaranty").

10. On May 29, 2015, Plaintiff commenced this action by moving for summary

judgment in lieu of complaint pursuant to CPLR §3213 against Defendant pursuant to his

Guaranty. Plaintiff's motion is set forth as NYSCEF Document #5-10.

11. Defendant appeared by present counsel, the Law Offices of Jay Stuart Dankberg,

and opposed the motion. Defendant's Affirmation in Opposition dated August 17, 2015 is set

forth as NYSCEF Document #19-23. At no time during the pendency of that motion did

Defendant raise any issue of any kind with respect to the application of the Security Deposit.

3 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

12. On August 27, 2015, this Court issued an Order granting Plaintiff's motion and

awarding it a money judgment in the amount of $141,900.00 against Defendant. A copy of that

"A"
Decision and Order is annexed hereto as Exhibit hereto and as NYSCEF Doc #25.

13. On November 10, 2015, a Judgment was entered by the Clerk of the Court in

favor of the Plaintiff and against the Defendant in the amount of $160,733.07. A copy of the

"B"
Judgment is annexed hereto as Exhibit and as NYSCEF Doc #28. Post-judgment interest

has continued to accrue since that time.

14. A transcript of Judgment was also filed in Westchester County, as Westchester

County is the location of residential and investment properties owned by the Defendant and/or

"C"
his wife. A copy of the filed Transcript of Judgment is annexed hereto as Exhibit hereto.

15. Plaintiff attempted thereafter, and unsuccessfully, to obtain post-Judgment

disclosure pursuant to Article 52 in order to locate assets to satisfy its Judgment. Plaintiff served

Defendant and his wife Leticia Choudhury with Information Subpoenae and Notices of

Deposition in November of 2015. Defendant at turn refused to with the post-
every comply

Judgment Subpoenae, forced Plaintiff to seek relief from the Court on three previous occasions

and steadfastly refused to appear for a deposition or otherwise account for his assets. Plaintiff

has previously moved on THREE SEPARATE OCCASIONS to compel disclosure and to seek

sanctions against the Defendant for his failure to respond to the Information Subpoenae or appear

for his deposition.

16. Plaintiff moved initially via Order to Show Cause on January 4, 2016 (see,

NYSCEF Doc #29-36). The motion was granted without opposition on January 21, 2016. The

"D."
Decision/Order dated January 21, 2016 is annexed hereto as Exhibit See NYSCEF Doc

#39.

4 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

17. Thereafter, as the Defendant still refused to provide post-Judgment discovery,

Plaintiff moved again on March 1, 2016 to compel compliance and for sanctions. See NYSCEF

Doc #41-47.

18. On March 24, 2016, Plaintiff's motion was granted to the extent that Defendant

(and his wife) were compelled to respond to the Information Subpoenae and to appear for their

"E."
depositions by dates certain. The Order is annexed as Exhibit See also, NYSCEF Doc #

54.

19. On May 2, 2016, as Defendant (and his wife) once again failed to appear for their

depositions or respond to the Information Subpoenae, Plaintiff moved again for contempt, and

also made a request that a Sheriff issue a Warrant of Arrest for the Defendant for his willful

failure to comply with post-Judgment Discovery. See NYSCEF Doc # 56-63.

20. On May 19, 2016, Defendant cross-moved to vacate the Judgment that was

entered against him. See NYSCEF Doc # 66-73.

21. On June 2, 2016, via Decision/Order, Plaintiff's Motion was again granted, and

"F"
no relief was granted on Defendant's cross-motion to vacate. See Exhibit attached hereto.

See also NYSCEF Doc # 86.

22. All the while, the Defendant was continuously and intentionally engaging in

schemes to prevent Plaintiff's attempts to collect upon its Judgment. The Defendant had, in an

obvious and transparent effort to evade his creditors, transferred his two parcels of real property

located in Yonkers, NY without fair consideration to his wife, Leticia Choudhury. The two

Property"
parcels in question are 27 Thurton Place, Yonkers, NY (the "Thurton Place Property") and 53

Property"
Pearl Street, Yonkers, NY (the "Pearl Street Property"). The latter of the two properties is a

commercial property, and upon information and belief, is being currently listed for sale by the

5 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

Defendant and/or his wife, or on their behalf. The Pearl Street Property was subsequently

transferred to a Limited Liability Company of which Leticia Choudhury is the sole Member, in

yet another effort to frustrate the efforts of creditors.

23. Now, Defendant moves once again, to vacate the Judgment entered in this case,

but fails to cite any truly new or factually and legally meritorious defense. Rather, Defendant

relies on dicta in the court's ruling of June 2, 2016 wherein the court stated, "Any credit that they

might be due is an issue for another occasion". As will be demonstrated below, the court's

observation was erroneous as the issue of the Security Deposit had already been decided, the

Defendant as Guarantor lacked standing to challenge the application of the Security Deposit and

any right to the Security Deposit that may have existed was otherwise specifically waived by

Defendant.

THE MOTION TO VACATE IS BARRED UNDER THE
DOCTRINE OF LAW OF THE CASE

24. The Defendant is seeking two bites at the same apple and to relitigate an issue

which had been preclusively decided.

25. Assuming arguendo that the issue of application of a Security Deposit would have

any legal viability, it is clear that the fact of the Security Deposit was before the court when

the original judgment was decided on August 15, 2015. In support of its motion,

Plaintiff submitted the Affirmation of James Rosensweig, Esq., Vice President and General

Counsel of 729 Seventh Owner LLC., dated May 13, 2015 annexed hereto as Exhibit "G",

NYSCEF Documents 6-10, as well as a Reply Affirmation dated August 17, 2015 as Exhibit

'"H", NYSCEF Documents 19 -23. In the affirmation, Mr. Rosensweig specifically noted that

in 2013, Europa and Defendant agreed and executed a Lease Termination and Continued

6 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

Occupancy Agreement ("COA"). Under the COA, all parties stipulated that Defendant's

Guaranty under the original lease would continue.

26. On May 19, 2017, in response to Plaintiff's third motion to hold the Defendant

and his wife in contempt for their continued failure to comply with post-judgment discovery,

Defendant moved by way a cross-motion to vacate the Judgment that was entered in this case,

and specifically requested the return of any excess Security Deposit that may have been due to

him.

"F"
27. Defendant's motion was not granted. See Exhibit annexed hereto.

28. It is well-established that the law of the case doctrine "is a rule of practice, an

articulation of sound policy that, when an issue is once judicially determined, that should be the

concerned."
end of the matter as far as Judges and courts of co-ordinate jurisdiction are Matter

of Oyster Bay Assoc. Ltd. Partnership v. Town Bd. of Town of Oyster Bay, 21 A.D.3d 964, 966

(2d Dept. 2005).

29. Defendant's attack on the of the Judgment - which itself was earlier
Here, validity

granted this Court after Defendant's appearance and opposition -- was determined
by previously

in the ealier round of motion practice in that the relief sought by the Defendant (identical to the

instant motion) was refused, and as such, is considered the law of the case, and can no longer be

re-opened for examination.

30. Permitting the Defendant to re-open the award of a Judgment that was previously

granted, after Defendant's prior, unsuccessful motion to vacate, after no new facts have been

established, would result in a miscarriage of justice.

7 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

DEFENDANT HAS FAILED TO SATISFY THE REQUIREMENTS
UNDER THE CPLR TO VACATE A JUDGMENT

31. Presumably (since no actual affidavit in support has been submitted) the alleged

basis for the requisite relief flows under CPLR §5015 entitled "Relief from judgment or order".

This section provides as follows:

(a) On motion. The court which rendered a judgment or order may relieve a

party from itupon such terms as may be just, on motion of any interested person
with such notice as the court may direct, upon the ground of:

1. Excusable default, ifsuch motion is made within one year
after service of a copy if the judgment or order with written notice
of its entry upon the moving party, or, if the moving party has
entered the judgment or order, within one year after such entry; or

2. Newly-discovered evidence, which, if introduced at the

trial, would probably have produced a different result and which
could not have been discovered in time to move for a new trial
under section [CPLR] 4404; or

3. Fraud, misrepresentation, or other misconduct of an
adverse party; or

4. Lack of jurisdiction to render the judgment or order; or

5. Reversal, modification or vacatur of a prior judgment or
based."
order upon which itis See CPLR §5015(a)1-5.

32. As the motion which preceded the entry of the Judgment was not granted on

default (opposition papers were submitted by current counsel), clearly subparagraph (1) of CPLR

5015 is inapplicable. Nor was any evidence submitted by Defendant's counsel which would

support relief under Subparagraph (3), (4) or (5) of this section.

33. The only section under which the Defendant could presumably move is

"newly"
subsection (2) but there was no discovered evidence. The fact of the existence of

Europa's Security Deposit was at all relevant times known to all. Defendant did not raise this as

8 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

a defense in its opposition papers to the original motion for entry of the Judgment, nor is there

any newly discovered evidence submitted on the instant motion. Plaintiff obtained a Judgment

by virtue of Defendant's broad and unconditional Guaranty of the Lease of Europa, nothing

more.

34. The reasons why Plaintiff was entitled to a judgment against the Defendant were

set forth in itsmotion for summary judgment. The Defendant's company Europa defaulted by

vacating the Subject Premises prior to the Surrender Date agreed to by the parties under their

agreement, and Europa's liability was guaranteed by the Defendant pursuant to his Guaranty.

35. The Plaintiff's original summary judgment motion papers carefully and

thoroughly outlined the factual circumstances of the leasehold at issue. Europa was the Plaintiffs

tenant at 729 Seventh Avenue. Defendant Syed Choudhury was the Guarantor of the Lease

between Europa and Plaintiff 729 Seventh Owner LLC.

36. In support of its motion, Plaintiff submitted the Affirmation of James

Rosensweig, Esq., Vice President and General Counsel of 729 Seventh Owner, LLC, annexed

"G"
hereto as Exhibit as well as a Reply Affirmation dated August 17, 2015 as Exhibit '"H",

NYSCEF Documents 19 -23. In the affirmation and as evidenced by supporting exhibits, Mr.

Rosensweig specifically noted that in 2013, Europa and Defendant agreed and executed a Lease

Termination and Continued Occupancy Agreement ("COA"). Under that COA Agreement, all

parties stipulated that Defendant's Guaranty under the original Lease would continue and that

Europa as Tenant and Defendant as Guarantor waived their interest in the Security Deposit under

the Lease and that the Plaintiff as Landlord could draw down and retain the Security Deposit for

its own account in consideration of the Plaintiff/Landlord's agreement to the terms of the

9 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

Termination Agreement of the Lease and for allowing Defendant/Tenant to remain in possession

of the Premises notwithstanding the termination of the lease.

37. Paragraph 8 of the COA plainly provides:

8. Tenant and Guarantor each waives or their
its interest
inthe securitydeposit
under theLease, and each ofTenant and Guarantor expresslyacknowledges and agreesthat such
securitydeposited by Tenant under theLease be drawn
may down and retainedby the Landlord

immediately, forLandlord's own account,inaddition to theamounts due and payable by Tenant
under thisTennination Agnement and thenow terminated Lease, such retentionof theSecurity
by Landlord good
constituting and valuable thereceiptand
consideration, sumciency whereof is

hereby acknowledged by Tenant and 0uarantor, forthe Landlord's agreement in theterms of this
Termination Agreement and allowing Tenant to remain in possession of the Premises

notwithstanding termination of theLease. The Deposit shallnot constitutean
Security offsetof

any kind with respect to amounts due hereunder or under the now-terminated Lease, or the
Guaranty.

The COA was signed by defendant of behalf of the company, as well as in his capacity as

guarantor.

EUROPA CAMERA & INC.
COMPUTERS,
Tenant

By: (f¼9 92IL
Syed Choudh , President

Syed di as
Choudhury, ly Guarantor

As is self-evident from the plain language of the agreement, in consideration of allowing

Europa as Tenant to terminate the existing Lease and continue in the leasehold, both Europa and

10 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

Defendant agreed that Plaintiff/Landlord would be entitled without limitation to the proceeds of

the Security Deposit.

38. Additionally, as part of the Stipulation of Settlement that allowed Europa to

continue to stay in occupancy, Europa agreed as

follows:

6. Respondent acknowledges and agrees that it shall not receive any payment or

consideration of any kind to vacate the and Respondent
Premises, expressly waives any rights

thereto and expressly waives any rights to the return of as set
any Security Deposit, forthin the

Termination Agreement.

39. The COA Agreement therefore make it clear that Defendant's arguments are

without merit. at a minimum in this procedural Defendant was well-
wholly However, context,

aware of any potential issues regarding the Security Deposit, meritorious or otherwise. In no

sense whatsoever, could any alleged issue regarding the Security Deposit be "newly discovered

evidence"
under CPLR Rule 5015. As such, Defendant's motion must be denied.

DEFENDANT LACKS STANDING TO ADDRESS ANY ISSUES REGARDING
THE STATUS OF THE SECURITY DEPOSIT

40. Defendant was the Lease Guarantor. The Tenant, Europa, was the entity that

made the Security Deposit. In concept, any claim that could be made regarding rebate, refund or

offset of that Security Deposit belongs solely to Europa and as such Defendant lack standing to

make any claim regarding the Security Deposit.

41. This concept is in fact embodied in the Lease Guaranty. The Lease Guaranty was

an exhibit to the Plaintiff s original motion for summary judgment and states:

11 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

3A TenantandGuarantor agree thatany ("Seandty")deposited
secadty
by Tenant under Atticle 31 shallnot be computed as a deduction from amount payable
any by
Guarantor under the tams of thisGuaranty or the Leases
and Guarantor acknowledges and waives
any olphnto theSecurity.Guarantor and Tenantacknowledge and agree thatupon tunination
early
of theLease saidSeemity shallbe retained thelandlord it addition to theamounts due
by and
payable by Tenant under theLease and by Guarantor under thetens of thisGuaranty.

42. It isimportant to recognize that guaranties and leases are separate agreements; the

former impose obligations on the guarantors and the latter impose obligations on the landlord

and the tenant, see Park Towers S. Co., LLC v 57 W. Operating Co., Inc., 96 A.D.3d 443, 945

N.Y.S.2d 554 (1st Dept. 2012). When a guarantor is sued on the guaranty, as is the case here, he

or she cannot raise a claim or defense which is personal to the principal debtor, such as breach of

the principal contract, unless it extends to a failure of consideration for the principal contract,

3rd
and therefore for the guarantor's contract. See I Bldg, Inc. v. Hong MeiCheung 137 A.D. 478,

3rd
26 N.Y. S. 463 (2016); See also Walcutt v Clevite Corp., 13 N Y.2d 48, 55-56, 191 N E.2d

894, 241 N.Y.S.2d 834 (1963); Moon 170 Mercer, Inc. v Vella, 122 A.D.3d 544, 545, 998

(1st
N.Y.S.2d 19 (1 Dept. 2014); Hotel 71 Mezz Lender LLC v Mitchell, 63 A.D.3d 447, 880

(1st
N.Y.S.2d 67 Dept. 2009).

43. Given the foregoing, Defendant lacks standing to prosecute any claim to the

Security Deposit. Moreover, by the very terms of the COA Agreement outlined above,

Defendant expressly agreed that the Security Deposit would not be used in any calculation that

would determine how much was owned him in his as Guarantor. as is self-
by capacity Finally,

evident, any claim to the Security Deposit was expressly waived not only by the Defendant but

by Europa as well.

12 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

EVEN ASSUMING DEFENDANT COULD OVERCOME THE VARIOUS
PROCEDURAL IMPEDIMENTS AS OUTLINED ABOVE, THE RECORD
DEMONSTRATES THAT DEFENDANT AND HIS COMPANY EUROPA CLEARLY
AND UNAMBIGUOUSLY WAIVED ANY RIGHTS TO THE SECURITY DEPOSIT.

44. Without conceding the inappropriate nature of re-examining the Judgment at issue

on issues related to the Security Deposit, itis abundantly clear that Defendant's arguments are

wholly without merit.

45. On at least two occasions, Defendant personally, and in his capacity as Guarantor,

waived any rights whatsoever to the Security Deposit.

46. The Guaranty of the Lease, which formed the basis of this very Judgment, states

that the Guarantor has no right of offset and waives any right to the Security Deposit. See

Paragraph 41 above and Exhibits G and H attached hereto.

47. Under the COA Agreement which allowed Europa to stay in occupancy,

Defendant reaffirmed his waiver to the Deposit. See Paragraphs 34 - 41 above and
Security

Exhibits G and H attached hereto.

48. Finally, the entity that made the Security Deposit, Europa, also waived itsright to

the Security Deposit in order to be allowed to terminate the Lease but to continue in occupancy.

See Paragraphs 34 - 41 above and Exhibits G and H attached hereto.

49. The foregoing evidence is already in the record submitted by the Plaintiff that

gave rise to the Judgment. It overwhelmingly and conclusively demonstrates that there is no

merit to Defendant's arguments.

PRIOR ORDERS

50. On three prior occasions, Defendant has been ordered to comply with the

Information Subpoenae and submit to a deposition. See NYSCEF Doc. 39, 54, and 86. To date,

Defendant has failed to comply.

13 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

DEFENDANT SHOULD BE HELD IN CONTEMPT FOR FAILING TO COMPLY
WITH LAWFUL SUBPOENAE AND COURT ORDERS

51. Section 753 of the Judiciary Law provides:

A. A court of record has power to punish, by fine and imprisonment, or either, a neglect
or violation of duty, or other misconduct, by which a right or remedy of a party to a civil
action or special proceeding, pending in the court may be defeated, impaired, impeded, or

prejudiced, in any of the following cases:
.................

5. A person subpoenaed as a witness, for refusing or neglecting to obey the

subpoena, or to attend, or to be sworn, or to answer as a witness.

52. Here, the court has already indicated that it would hold Defendant in contempt

for failure to comply with the outstanding disclosure. See NYSCEF No. 86. Defendant ignored

the order of the court and as such must be held in contempt.

PLAINTIFF IS ENTITLED TO AN ORDER SANCTIONING DEFENDANT
AND AWARDING IT ITS

ATTORNEY'S FEES AND COSTS SUSTAINED IN HAVING
TO DEFEND THIS FRIVILOUS MOTION

that..."
53. Section §130-1.1 of the Rules of the Chief Administrator states in part the

court, in its discretion, may award to any party or attorney in any civil action or proceeding

before the court, costs in the form of reimbursement for actual expenses reasonably incurred and

conduct."
reasonable attorney's fees, resulting from frivolous

54. Section 130-1.2 of the Rules of the Chief Administrator provides that the Court

may impose sanctions or costs, or both, against a party and/or his attorney setting forth the

conduct on which the award or imposition is based.

55. Conduct according to §130.1.1 (c) is frivolous if itis completely without merit in

law"
or "is undertaken primarily to delay or prolong the resolution of this litigation, or to harass

or maliciously injure another".

14 of 147
FILED: NEW YORK COUNTY CLERK 06/26/2018 02:44 PM INDEX NO. 651868/2015
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 06/26/2018

56. As has been set forth herein, Defendant has chosen, at this time, to make yet

another motion to vacate a Judgment that was entered in 2015 after such vacatur relief has been

previously denied and failed to include the basis for the new attempt at vacatur, nor any

affirmation or affidavit in support of such a motion. The attempt to vacate the Judgment has

already been resolved in this action, and Defendant has not offered any facts or argument (under

CPLR 5015 or otherwise) as to why his repetitive motion should be granted. Clearly, this is

frivolous conduct as

Case Info

Judge

Shlomo Hagler Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

June 26, 2018

Case Filing Date

May 28, 2015

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: 729 Seventh Owner Llc v. Syed Choudhury

Preview

Related Topics

Case Info

Parties