Preview
FILED: NEW YORK COUNTY CLERK 09/08/2015 07:16 PM INDEX NO. 653221/2012
NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 09/08/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ROBERT LERCH and ELIZABETH TAPPER, Index No. 653221/2012
Plaintiffs,
Notice of Appeal
ARK RESTORATION & DESIGN, LTD.,
ANATOLY KRISHTUL, RENA KRISHTUL
and DAVID KRISHTUL,
Defendants.
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PLEASE TAKE NOTICE, that defendants ARK Restoration & Design,
LTD., Anatoly Krishtul, Rena Krishtul and David Krishtul, by their undersigned
counsel, respectfully submit this appeal to the Appellate Division of the
Supreme Court of the State of New York, for the First Judicial Department,
from each and every part of the Memorandum Decision and Order of the
Supreme Court, New York County (Carol Robinson Edmead, J.S.C.) dated July
24, 2015 and filed by the Clerk of the Court, New York County, on July 27,
2015. Copies of the Memorandum Decision and Order are annexed hereto.
The Memorandum Decision and Order from which this appeal is taken
denied defendants’ motion for multi-faceted relief (Motion Sequence No. 7)
including (i) summary judgment dismissing the two remaining claims of
plaintiffs’ unverified Amended Complaint, notwithstanding plaintiffs’ sworn
admissions that the central pleaded allegations were “incorrect”, and (ii) further
sanctions against plaintiffs, despite the Court’s prior rulings granting such
sanctions.
Plaintiffs submitted no substantive opposition to defendants’ motion. The
filing that was made by plaintiffs on the eve of oral argument (weeks after the
motion had been submitted without opposition in Room 130 of this Court)
contained no submission by plaintiffs themselves (only counsel), and the
“opposition” was expressly limited to the timeliness of defendants’ motion and
the undersigned’s ability to practice law. The Court below expressly ordered
{00039013.}
during the June 23 oral argument that if plaintiffs’ counsel’s allegations in the
late-filed opposition concerning the undersigned were false, further sanctions
would follow. The Court below neglected that order and declined to follow
through and sanction counsel’s latest abuse.
Dated: Brooklyn, New York
September 8, 2015
Respectfully submitted,
LAWRENCE E. TOFEL, P.C.
By:_S/ Lawrence E. Tofel____
Lawrence E. Tofel
163 Washington Avenue – Suite 5B
Brooklyn, New York 11205
(212) 752-0007
Attorneys for defendants- appellants
To: Clerk of the Supreme Court of the State of New York,
County of New York
All counsel of record
{00039013.}{00032751.} 2
INDEX NO. 653221/2012
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 07/27/2015
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: PART 3;·
Justice
Index Number: 653221/2012
LERCH, ROBERT INDEX NO.
vs.
ARK RESTORATION & DESIGN LTD.
MOTION DATE 4;;; ~/;.;-
SEQUENCE NUMBER : 007 MOTION SEQ. N O . - - - -
SUMMARY JUDGMENT
The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - - - -
Notice of Motion/Order to Show Cause - Affidavits - Exhibits I No(s). _ _ _ _ _ __
Answering Affidavits - Exhibits------------------ I No(s). - - - - - - -
Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - - - 1No(s). _ _ _ _ _ __
Upon the foregoing papers, it is ordered that this motion is
Based on the accompanying Memorandum Decision, it is hereby
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ORDERED that defendants' motion is denied, except that defendants' request for a stay
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:::> of any further proceedings by plaintiffs herein, unless and until they pay the April 30, 2015
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0 Judgment entered against them, and satisfy any subsequent orders entered against them herein
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C and directing each plaintiff to provide full and complete certified liquid asset disclosure to
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0:: defendants, including oral examinations, for the purposes of enabling defendants to satisfy the
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Judgment is denied without prejudice at this juncture, to be addressed at a further status
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~ Ui ORDERED that the parties shall appear for a status conference on September 15, 2015,
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0 3:00 p.m.; and it is further
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w ORDERED that defendants shall serve a copy of this order with notice of entry upon all
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wz This constitutes the decision and order of the Court.
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Dated: 7/ 2'i /1s
1. 0 CASE DISPOSED
CHECK ONE: ..................................................................... EYNON-FINAL. DISP~SITION
2. CHECK AS APPROPRIATE: ........................... MOTION IS:
0 GRANTED ifoENIED CJ GRANTED IN PART OOTHER
3. 0 SETTLE ORDER
CHECK IF APPROPRIATE: ................................................ 0 SUBMIT ORDER
0DONOTPOST 0 FIDUCIARY APPOINTMENT [] REFERENCE
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 35
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ROBERT LERCH and ELIZABETH TAPPER, Index No.: 653221/2012
Plaintiffs, Motion Seq. No. 007
-against-
ARK.RESTORATION & DESIGN LTD., ANATOLY
KRISHTUL, RENA KRISHTUL, and DAYID KRISHTUL,
Defendants.
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HON. CAROL ROBINSON EDMEAD, J.S.C.
MEMORANDUM DECISION
In this action to recover monies allegedly paid to create jewelry for resale, defendants Ark
Restoration & Design, Ltd., Anatoly Krishtul ("Anatoly"), Rena Krishtul ("Rena"), and David
Krishtul (collectively, "defendants") move for an order granting: (i) further sanctions against
plaintiffs Robert Lerch ("Lerch") and his wife, Elizabeth Tapper ("Tapper") (collectively,
"plaintiffs") and their counsel based on plaintiffs' discovery abuses, the costs and attorneys fees
incurred by defendants' in responding to Lerch' s wrongful filing of a criminal complaint during
the pendency of this action, and for necessitating the preparation and filing of this motion; (ii)
summary judgment and additional sanctions for the wrongful and intentionally abusive and
harassing pursuit of claims, including a criminal complaint, which plaintiffs' tardy discovery now
reveals were knowingly false and which seek relief to which plaintiffs now acknowledge th<:~y are
not and never were entitled; (iii) a stay of any further proceedings by plaintiffs herein, unless and
until they pay the April 30, 2015 Judgment entered against them, and satisfy any subsequent
orders entered against them herein because of their discovery abuses or otherwise; and (iv)
directing each plaintiff to provide full and complete certified liquid asset disclosure to
defendants, including oral examinations, for the purposes of enabling defendants to satisfy the
Judgment.
Factual Background1
In June 2010, plaintiffs entered into a "joint venture agreement" with defendants (the
"jewelry suite agreement"), pursuant to which plaintiffs paid $45,000 for defendants to create two
identical pieces of jewelry called "Memento Mori Suite" (the "jewelry suite"). One was intended
as a gift from Lerch to Tapper, and the other was intended for sale, the profits of which were to
be split evenly between plaintiffs and defendants.
Six months later, in January 2011, Lerch and defendants entered into a joint venture
agreement with non-party Alexander Gallery ("Alexander") for Alexander to obtain permission
from the Palm Beach Art Show for plaintiffs to sell their jewelry from Alexander's booth at the
February 2011 Show (the "Palm Beach Agreement"). Under the Palm Beach Agreement, Lerch
was obligated to pay the costs related to the showing and selling of plaintiffs' jewelry; and, the
parties agreed to distribute the gross sales proceeds of defendants' jewelry as follows: 20% to
Alexander, reimbursement to Lerch and defendants costs they expended in connection with the
Art Show, and the balance to be split evenly between Lerch and defendants. 2
Thereafter, in February 2011, the parties modified the jewelry suite agreement to
substitute one of the pendants for a matching ring, for an additional cost of $10,000, which
plaintiffs agreed to pay upon the completion of the pieces. The parties agreed that Tapper had
1
The Factual Background is taken from the Amended Complaint.
2
At the Art Show, defendants, unbeknownst to plaintiffs, agreed to pay a representative 10% of net
proceeds on any sale generated by the representative. Defendants' net profit from the Art Show sales was $90,000.
2
the option to keep both pieces for the purchase price, and that if she did not exercise her option to
keep either the pendant and/or the ring, plaintiffs would sell the piece not kept by Tapper and pay
defendants 50% of the sale proceeds over and above the amounts previously paid to defendants.
By email, defendants confirmed the agreement, and assured that the jewelry suite would
be completed by September 31, 2011.
Defendants failed to complete the jewelry pieces, and have failed to deliver either the
jewelry suite pieces or the monies paid by plaintiffs, despite repeated demands. Further,
defendants only reimbursed Lerch $9,700 for his expenses related to the Art Show, and failed to
pay his share of the net profit and now owes him at least $35,300.
Consequently, plaintiffs commenced this action, alleging causes of action for breach of
contract relating to the jewelry suite agreement (first) and art show agreement (second) and
breach of implied good faith and fair dealing concerning defendants' hiring of the representative
at the art show. Plaintiffs seek damages in the amount not less than $80,300.
In support of their motion, defendants contend that the Court ruled, on February 24, 2:015,
that defendants were entitled to recover the balance of the costs and fees they sustained after the
first sanction was issued while proceedings continued and plaintiffs continued to seek to set aside
the Court's dismissal of their complaint. Thus, defendants seek such costs and fees herein.
Defendants further seek summary dismissal of the complaint on the ground that no
evidence exists to support the claims. Discovery shows that no amounts are due to either
plaintiff under the arrangement between the parties, and Lerch's claim regarding the Palm Beach
Art Show fail because there was agreement between the parties concerning this event, and the
Statute of Frauds bars any claim for commission claimed to have been earned for negotiating the
3
sale of the jewelry. Defendants should be reimbursed 100% of attorneys fees and costs in
defending this suit.
Further, defendants argue that a stay of this action is warranted because they should not
be required to defend this suit while the judgment issued against plaintiffs during this litigation
remains unpaid.
And, defendants seek an order directing plaintiffs to disclose and give testimony of th~;:ir
liquid assets in order to permit defendants to enforce the orders or judgments (entered April 30,
2015) of the Court.
In opposition, plaintiffs essentially argue that the motion is untimely, premature, lacks
merit, and defeated by issues of fact as to plaintiffs' claims. Further, plaintiffs request
compliance with their discovery demands. 3
Discussion
It is well settled that where a defendant is the proponent of a motion for summary
judgment, the defendant must establish that the "cause of action ... has no merit" (CPLR
§3212[b]) sufficient to warrant the court as a matter of law to direct judgment in its favor
(Friedman v BHL Realty Corp., 83 AD3d 510, 922 NYS2d 293 [l5t Dept 2011]; Winegrad v New
York Univ. Med Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). Thus, the proponent of a
motion for summary judgment must make a prima facie showing of entitlement to judgment as a
matter oflaw, by advancing sufficient "evidentiary proof in admissible form" to demonstrat~: the
absence of any material issues of fact (Madeline D 'Anthony Enterprises, Inc. v Sokolowsky, 101
3
Oral argument on the motion was held on June 23, 2015, which resulted in a further submission by
defendants' counsel addressing, inter alia, his attorney registration status.
4
AD3d 606, 957 NYS2d 88 [Pt Dept 2012] citing Alvarez v Prospect Hosp., 68 NY2d 320, 501
NE2d 572 [1986] and Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also
Powers ex rel. Powers v 31E31LLC,24 NY3d 84 [2014]).
When such a showing is made, the burden shifts to the party opposing the motion to
demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action
(CPLR §3212 [b]; Farias v Simon, 122 AD3d 466 [1st Dept 2014]). "[M]ere conclusions,
expressions of hope or unsubstantiated allegations or assertions are insufficient" for this purpose"
(Kosovsky v Park South Tenants Corp., 45 Misc.3d 1216(A), 2014 WL 5859387 [Sup Ct New
York Cty 2014] citing Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]). The opponent
"must assemble, lay bare, and reveal his proofs in order to show his defenses are real and capable
of being established on trial ... and it is insufficient to merely set forth averments of factual or
legal conclusions" (Genger v Genger, --- NYS2d ----, 2014 WL 6803487 [Pt Dept 2014] citing
Schiraldi v US. Min. Prods., 194 AD2d 482, 483 [1st Dept 1993 ]). In other words, the "issue
must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary
relief' (American Motorists Ins. Co. v Salvatore, 102 AD2d 342, 476 NYS2d 897 [1st Dept
1984]; see also, Armstrong v Sensormatic/ADT, 100 AD3d 492, 954 NYS2d 53 [!81 Dept2012]).
As to defendants' application for further sanctions against plaintiffs and their counsell
based on plaintiffs' conduct concerning discovery, and costs and attorneys fees incurred by
defendants' in responding to Lerch's criminal complaint, and costs in pursuing this motion, such
request is denied. Plaintiffs' conduct relating to discovery has already been addressed and an
orders issued (see August 26, 2014 and February 24, 2015 orders directing a hearing on the issue
of costs and attorneys' fees, and confirming the recommendation of $17,441.95, respectively).
5
With respect to the criminal complaint, defendants' quotation of the Court's statement is taken
out of context. At the February 24, 2015 hearing, the Court stated:
MR. TOFEL: ... May we make such an application [for attorneys' fees and costs
incurred in connection with this exercise] because the defendants have been put - - as you
just heard, the [criminal] complaint should never have been filed. I know that it was filed
at the utmost in bad faith because there is proof that they threatened to file it.
*****
... they have carried through on their threat just to cause my client to incur costs.
THE COURT: Your client is going to get all the attorneys' fees and costs related
to the litigation. I still don't have really concrete proof of anything with respect to the
criminal - - this complaint that was filed to show that it was willful, contumacious, which
would be a basis for sanctions. I don't have that. I'm going on what I have to move
forward.
(Transcript, p. 32)
(Emphasis added).
The Court finds no basis for the costs defendants' seek related to the criminal complaint
filed by plaintiffs, and the Court's statements above do not constitute rulings so holding.
Therefore, the branch of defendants' motion for sanctions is denied.
As to defendants' request for summary judgment,4 such request is unwarranted.
Tapper's sole claim is one for breach of contract concerning the jewelry suite. Both
plaintiffs interrogatories, on which defendants rely for dismissal, state that the parties initially
agreed that defendants would create two pendents, at plaintiffs' cost of $45,000 (Lerch
Interrogatory, if9 ("defendants were given a total of 45k. originally they were going to produce
two momento mori pendants"; Tapper Interrogatory, 'i[25 ("defendants were given a total of 45.
4
To the degree defendants' request "additional sanctions for the wrongful and intentionally abusive and
harassing pursuit of claims, including a criminal complaint, which plaintiffs' tardy discovery now reveals were
knowingly false and which seek relief to which plaintiffs now acknowledge they are not and never were entitled;"
such request is denied.
6
originally they were going to produce two mm pendants .... "). Both stated that one was for
Tapper, and the other was for "resale, and we would split the profit on the second" one (Tapp~:r
Interrogatory, ~25" (emphasis added); see also Lerch Interrogatory, ~25"}. Therefore, such
interrogatories indicate that at the time defendants were paid $45,000.00, the parties understood
that defendants would produce two pendents, one of which would be sold at a profit to be equally
shared among the parties. Defendants, on the other hand state, that Lerch requested ARK to
create a pendent as a gift for Tipper, and if she "liked the pendant after the molds and design
work were completed, ARK would produce a second (and identical) piece for" her to keep, with
the first piece to be sold for profits which would be split evenly. According to defendants, Lerch
sent both checks totaling $45,000.
Both parties agree, however, that thereafter, the parties agreed to modify defendants'
production to include a ring and a pendent (instead of two pendants), for "sale with a split of the
profit above the 45K cost between ark and lerch." (Lerch Interrogatory, ~25; defendants'
affidavits, ~6). According to defendants, Lerch and ARK agreed that a ring "would be made,"'5
and "the two resulting pieces would be coordinated and sold together, with the profits being split
evenly." (Defendants' affidavits, ~6). Therefore, the record establishes that the parties agreed
that defendants would create a ring and pendant for sale, the profits of which would be split
evenly between Lerch and Ark. Defendants attest that cost estimates were revised at that time to
$55,000 (Defendants' affidavits, ~6). Defendants further state that the $10,000 additional costs
would be due "when completed." (Defendants' affidavits, ~9). Defendants also submit an email
5
It is uncontested that Tipper later did not want the pendant, and thus, the parties agreed for defendant to
create ring instead.
7
dated June 9, 2011 from Anatoly to Tipper, wherein Anatoly clarified that ARK expected
"payment of the additional $10,000 upon completion of production. Then once we sell the suilte,
we will share the profits equally." Tipper responded, "Thanks for clarifying but the ring and
pendant are being made for me. IfI don't like them, only then will they be sold by [Lerch] no
tus. It's his money. Lizzie." Lerch states that the pendant and ring were to be produced "for a
price of $45,000 which I paid for" (Lerch Interrogatory, iJ9). Tipper similarly states in her
interrogatory answers that the "suite" would be for sale, "splitting the profit above the 45k cost."
Thus, as plaintiffs assert that the total cost of the ring and pendent was $45,000, and defendants
maintain that the cost was $55,000, an issue of fact as to a material term of the parties' agreement
exists (see DerOhannesian v City ofAlbany, 110 AD3d 1288, 975 NYS2d 188 [3d Dept 2013];
see also, Brennan Beer Gorman/Architects, LLP v Cappelli Enterprises, Inc., 85 AD3d 482, 925
NYS2d 25 [1st Dept 2011] (describing price of services as a material term)). The documents
submitted by the movant, defendants herein, fail to establish that issues of fact do not exist as to
the price of the jewelry suite, the payment of which triggers the sale of same for profits to be split
by the parties. While defendants maintain that upon completion, Lerch would pay ARK "the
balance" and ARK would then sell the pieces and divide the profits evenly (Defendants'
affidavits, iJ9), and that jewelry suite "is complete and has been for some time," defendants failed
to establish any agreement on the part of any plaintiff to pay the balance of $10,000. And, the
above email indicates that Lerch was the party responsible for the sale of jewelry suite upon its
completion. Thus, while defendants maintain that the pendent and ring are complete, they have
not established, as a matter of law, that either Tipper or Lerch agreed to pay the additional
$10,000 for the ring, such that plaintiffs' failure to pay such amount relieved defendants' of their
8
obligations under the agreement so as to support summary dismissal of plaintiffs' breach of
contract claim.
Defendants also failed to establish that the Statute of Frauds §5-701 bars Lerch's claims
for breach of contract and implied covenant of good faith in connection with his sale of
defendants' jewelry at the Palm Beach Art Show. The section relied upon by defendants
provides:
a. Every agreement, promise or undertaking is void, unless it or some note or
memorandum thereof be in writing, and subscribed by the party to be charged therewith,
or by his lawful agent, if such agreement, promise or undertaking:
10. Is a contract to pay compensation for services rendered in negotiating a loan, or in
negotiating the purchase, sale, exchange, renting or leasing of ... a business opportunity .
.. including the creating of a partnership interest. "Negotiating" includes procuring an
introduction to a party to the transaction or assisting in the negotiation or consummation
of the transaction.
Defendants' claim that plaintiffs seek compensation for negotiating the sales of ARK's
jewelry or for introducing prospective customers ignores the amended complaint and
interrogatory responses of Lerch.
The "statute of frauds is generally inapplicable to an agreement to create a joint venture
(Foster v Kovner, 44 AD3d 23, 840 NYS2d 328 (1st Dept 2007] citing FS. Intertrade Off Prods.
v Babina, 199 AD2d 95, 96, 605 NYS2d 57 [1993], Iv denied 83 NY2d 757, 615 NYS2d 875,
639 N.E.2d 416 [1994]). "This is because, absent any definite term of duration, an oral
agreement to form a ... joint venture for an indefinite period creates a partnership or joint
venture at will" (Foster v Kovner, 44 AD3d 23; Massey v Byrne, 112 AD3d 532, 977 NYS2cl 242
[1st Dept 2013]).
While defendants established that no written agreement existed between Lerch and
9
defendants concerning the Palm Beach Art Show, the record contains several examples of
Lerch's claim that he and ARK entered into a joint venture agreement, wherein Lerch agreed to
pay the costs associated with the sale of ARK's jewelry at the Show, and share in the profits of
the sale (Moses v Savedojf, 96 AD3d 466, 947 NYS2d 419 [1st Dept 2012] (defendant's statut1:~of
frauds argument lacked merit where "the parties' alleged agreement to share in the profits of
certain cases, when reasonably interpreted, could have been performed within one year")). Thus,
dismissal of the second and third causes of action based on the Statute of Frauds is denied.
It is noted that there is no merit to plaintiffs' objections that (1) the plaintiffs' previous
September 22, 2014 motion to vacate is outstanding,6 (2) the instant motion is untimely filed
pursuant to this Court's April 14, 2014 order directing same be file within 30 days; 7 and (3)
defendant's counsel is precluded from practice oflaw due to the delinquent status of his attorney
registration, defendants failed to establish entitlement to summary dismissal of plaintiffs'
claims. 8 Also insufficient is plaintiffs' contention that defendants' failure to mail plaintiffs a
6
The September 22, 2014 motion to vacate was resolved pursuant to an order dated February 24, 2015, in
"accordance with the 'So-Ordered' transcript held on today's date." Said order also ruled that the "within action is
restored."
7
The motion was filed on May 14, 2014, and plaintiffs cite no authority for the positionthat the fact that
certain exhibits were filed a day or so thereafter renders the motion untimely under the circumstances.
8
A "person is authorized to practice law if that person has been admitted to practice and has taken the
requisite oath" (Benjamin v Koeppel, 85 NY2d 549, 650 N.E.2d 829 (1995] citing Judiciary Law§§ 478, 466, and
476-a[l][b]). "Admission is governed by Judiciary Law§ 90, which refers only to certification by the State Board
of Law Examiners, consideration by the Appellate Division of the applicant's general fitnes~ and character and
compliance with the Court of Appeals and Appellate Division rules "relating to the admission of attorneys"
(Benjamin, supra). Neither "section 90 nor the statute authorizing admitted attorneys to practice law mentions
section 468-a's registration requirement" (id). "Judiciary Law § 468-a(5) provides that noncompliance with the
registration requirement and accompanying rules 'shall be referred to the appropriate appellate division,' which
imposes "disciplinary sanctions tailored to the particular case" (id).
Here, plaintiff failed to demonstrate that a
delinquency in one's attorney registration precludes one from the practice of law, as a matter oflaw. Plaintiff also
failed to demonstrate that defense counsel was ever suspended from the practice oflaw. In any event, defense
counsel cured the delinquency status.
10
copy of the recording and failure to properly file same with the Court as directed renders the
motion untimely. The recording, which is submitted to support defendants' request for sanctions
based on Tapper's purported intent to make defendants' "lives miserable," is not submitted to
establish the terms of the parties' agreement. Therefore, any failure to exchange the recording is
inconsequential as to the summaryjudgment portion of the motion.
Further, plaintiffs' claim that outstanding discovery renders plaintiffs' motion for
summary judgment premature, is insufficient (Hariri v Amper, 51AD3d146, 854 NYS2d 126
[Pt Dept 2008]; see Carroll v Radoniqi, 105 AD3d 493, 963 NYS2d 97 [Pt Dept 2013] (a
"claimed need for discovery, without some evidentiary basis indicating that discovery may lead
to relevant evidence, is insufficient to avoid an award of summary judgment")). However, this
claim, as well as plaintiffs' claim that defendants have yet to comply plaintiffs' discovery
demands previously served on July 2, 2013 and March 24, 2014 and should be directed to
comply with the March 24, 2014 demand, will be addressed at a status conference.
Therefore, notwithstanding plaintiffs' inadequate opposition, defendants' failure to
demonstrate entitlement to judgment as a matter of law and the absence of triable issues of fact
results in the denial of the motion, regardless of the sufficiency of the opposing papers (Corprew
v City ofNew York, 106 AD3d 524, 965 NYS2d 108 [1st Dept 2013]; TrizecHahn, Inc. v Timbil
Chiller Maintenance Corp., 92 AD3d 409, 937 NYS2d 586 [1st Dept 2012]; Santos v New York
City Transit Authority, 99 AD3d 550, 952 NYS2d 179 [1st Dept 2012]).
However, as to defendants' request for a stay of any further proceedings by plaintiffs
herein, unless and until they pay the April 30, 2015 Judgment entered against them, and satisfy
any subsequent orders entered against them herein and directing each plaintiff to provide full and
11
complete certified liquid asset disclosure to defendants, including oral examinations, for the
purposes of enabling defendants to satisfy the Judgment is denied without prejudice at this
juncture, to be addressed at a further status conference.
Conclusion
Based on the above, it is hereby
ORDERED that defendants' motion is denied, except that defendants' request for a stay
of any further proceedings by plaintiffs herein, unless and until they pay the April 30, 2015
Judgment entered against them, and satisfy any subsequent orders entered against them herein
and directing each plaintiff to provide full and complete certified liquid asset disclosure to
defendants, including oral examinations, for the purposes of enabling defendants to satisfy the
Judgment is denied without prejudice at this juncture, to be addressed at a further status
conference; and it is further
ORDERED that the parties shall appear for a status conference on September 15, 2015,
3 :00 p.m.; and it is further
ORDERED that defendants shall serve a copy of this order with notice of entry upon all
parties within 20 days of entry.
This constitutes the decision and order of the Court.
Dated: July 24, 2015
Hon. Carol Robinson Edmead, J.S.C.
12
Preview
FILED: NEW YORK COUNTY CLERK 09/08/2015 07:16 PM INDEX NO. 653221/2012 NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 09/08/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X ROBERT LERCH and ELIZABETH TAPPER, Index No. 653221/2012 Plaintiffs, Notice of Appeal ARK RESTORATION & DESIGN, LTD., ANATOLY KRISHTUL, RENA KRISHTUL and DAVID KRISHTUL, Defendants. -------------------------------------------------------------------X PLEASE TAKE NOTICE, that defendants ARK Restoration & Design, LTD., Anatoly Krishtul, Rena Krishtul and David Krishtul, by their undersigned counsel, respectfully submit this appeal to the Appellate Division of the Supreme Court of the State of New York, for the First Judicial Department, from each and every part of the Memorandum Decision and Order of the Supreme Court, New York County (Carol Robinson Edmead, J.S.C.) dated July 24, 2015 and filed by the Clerk of the Court, New York County, on July 27, 2015. Copies of the Memorandum Decision and Order are annexed hereto. The Memorandum Decision and Order from which this appeal is taken denied defendants’ motion for multi-faceted relief (Motion Sequence No. 7) including (i) summary judgment dismissing the two remaining claims of plaintiffs’ unverified Amended Complaint, notwithstanding plaintiffs’ sworn admissions that the central pleaded allegations were “incorrect”, and (ii) further sanctions against plaintiffs, despite the Court’s prior rulings granting such sanctions. Plaintiffs submitted no substantive opposition to defendants’ motion. The filing that was made by plaintiffs on the eve of oral argument (weeks after the motion had been submitted without opposition in Room 130 of this Court) contained no submission by plaintiffs themselves (only counsel), and the “opposition” was expressly limited to the timeliness of defendants’ motion and the undersigned’s ability to practice law. The Court below expressly ordered {00039013.} during the June 23 oral argument that if plaintiffs’ counsel’s allegations in the late-filed opposition concerning the undersigned were false, further sanctions would follow. The Court below neglected that order and declined to follow through and sanction counsel’s latest abuse. Dated: Brooklyn, New York September 8, 2015 Respectfully submitted, LAWRENCE E. TOFEL, P.C. By:_S/ Lawrence E. Tofel____ Lawrence E. Tofel 163 Washington Avenue – Suite 5B Brooklyn, New York 11205 (212) 752-0007 Attorneys for defendants- appellants To: Clerk of the Supreme Court of the State of New York, County of New York All counsel of record {00039013.}{00032751.} 2 INDEX NO. 653221/2012 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 07/27/2015 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART 3;· Justice Index Number: 653221/2012 LERCH, ROBERT INDEX NO. vs. ARK RESTORATION & DESIGN LTD. MOTION DATE 4;;; ~/;.;- SEQUENCE NUMBER : 007 MOTION SEQ. N O . - - - - SUMMARY JUDGMENT The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits I No(s). _ _ _ _ _ __ Answering Affidavits - Exhibits------------------ I No(s). - - - - - - - Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - - - 1No(s). _ _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is Based on the accompanying Memorandum Decision, it is hereby w () ~ ORDERED that defendants' motion is denied, except that defendants' request for a stay VJ :::> of any further proceedings by plaintiffs herein, unless and until they pay the April 30, 2015 "'") 0 Judgment entered against them, and satisfy any subsequent orders entered against them herein I- C and directing each plaintiff to provide full and complete certified liquid asset disclosure to w 0:: defendants, including oral examinations, for the purposes of enabling defendants to satisfy the 0:: w LL Judgment is denied without prejudice at this juncture, to be addressed at a further status w conference; and it is further 0:: ~ Ui ORDERED that the parties shall appear for a status conference on September 15, 2015, ..Jz :::> 0 3:00 p.m.; and it is further LL U> I- () <( w ORDERED that defendants shall serve a copy of this order with notice of entry upon all w 0:: parties within 20 days of entry. g, wz This constitutes the decision and order of the Court. ~~ w ..J VJ ..J <( 0 LL ~ w z :c 0 I- ~ 0:: Oo ~ LL Dated: 7/ 2'i /1s 1. 0 CASE DISPOSED CHECK ONE: ..................................................................... EYNON-FINAL. DISP~SITION 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED ifoENIED CJ GRANTED IN PART OOTHER 3. 0 SETTLE ORDER CHECK IF APPROPRIATE: ................................................ 0 SUBMIT ORDER 0DONOTPOST 0 FIDUCIARY APPOINTMENT [] REFERENCE SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 35 ----------------------------------------------------------------------------x ROBERT LERCH and ELIZABETH TAPPER, Index No.: 653221/2012 Plaintiffs, Motion Seq. No. 007 -against- ARK.RESTORATION & DESIGN LTD., ANATOLY KRISHTUL, RENA KRISHTUL, and DAYID KRISHTUL, Defendants. ----------------------------------------------------------------------------x HON. CAROL ROBINSON EDMEAD, J.S.C. MEMORANDUM DECISION In this action to recover monies allegedly paid to create jewelry for resale, defendants Ark Restoration & Design, Ltd., Anatoly Krishtul ("Anatoly"), Rena Krishtul ("Rena"), and David Krishtul (collectively, "defendants") move for an order granting: (i) further sanctions against plaintiffs Robert Lerch ("Lerch") and his wife, Elizabeth Tapper ("Tapper") (collectively, "plaintiffs") and their counsel based on plaintiffs' discovery abuses, the costs and attorneys fees incurred by defendants' in responding to Lerch' s wrongful filing of a criminal complaint during the pendency of this action, and for necessitating the preparation and filing of this motion; (ii) summary judgment and additional sanctions for the wrongful and intentionally abusive and harassing pursuit of claims, including a criminal complaint, which plaintiffs' tardy discovery now reveals were knowingly false and which seek relief to which plaintiffs now acknowledge th<:~y are not and never were entitled; (iii) a stay of any further proceedings by plaintiffs herein, unless and until they pay the April 30, 2015 Judgment entered against them, and satisfy any subsequent orders entered against them herein because of their discovery abuses or otherwise; and (iv) directing each plaintiff to provide full and complete certified liquid asset disclosure to defendants, including oral examinations, for the purposes of enabling defendants to satisfy the Judgment. Factual Background1 In June 2010, plaintiffs entered into a "joint venture agreement" with defendants (the "jewelry suite agreement"), pursuant to which plaintiffs paid $45,000 for defendants to create two identical pieces of jewelry called "Memento Mori Suite" (the "jewelry suite"). One was intended as a gift from Lerch to Tapper, and the other was intended for sale, the profits of which were to be split evenly between plaintiffs and defendants. Six months later, in January 2011, Lerch and defendants entered into a joint venture agreement with non-party Alexander Gallery ("Alexander") for Alexander to obtain permission from the Palm Beach Art Show for plaintiffs to sell their jewelry from Alexander's booth at the February 2011 Show (the "Palm Beach Agreement"). Under the Palm Beach Agreement, Lerch was obligated to pay the costs related to the showing and selling of plaintiffs' jewelry; and, the parties agreed to distribute the gross sales proceeds of defendants' jewelry as follows: 20% to Alexander, reimbursement to Lerch and defendants costs they expended in connection with the Art Show, and the balance to be split evenly between Lerch and defendants. 2 Thereafter, in February 2011, the parties modified the jewelry suite agreement to substitute one of the pendants for a matching ring, for an additional cost of $10,000, which plaintiffs agreed to pay upon the completion of the pieces. The parties agreed that Tapper had 1 The Factual Background is taken from the Amended Complaint. 2 At the Art Show, defendants, unbeknownst to plaintiffs, agreed to pay a representative 10% of net proceeds on any sale generated by the representative. Defendants' net profit from the Art Show sales was $90,000. 2 the option to keep both pieces for the purchase price, and that if she did not exercise her option to keep either the pendant and/or the ring, plaintiffs would sell the piece not kept by Tapper and pay defendants 50% of the sale proceeds over and above the amounts previously paid to defendants. By email, defendants confirmed the agreement, and assured that the jewelry suite would be completed by September 31, 2011. Defendants failed to complete the jewelry pieces, and have failed to deliver either the jewelry suite pieces or the monies paid by plaintiffs, despite repeated demands. Further, defendants only reimbursed Lerch $9,700 for his expenses related to the Art Show, and failed to pay his share of the net profit and now owes him at least $35,300. Consequently, plaintiffs commenced this action, alleging causes of action for breach of contract relating to the jewelry suite agreement (first) and art show agreement (second) and breach of implied good faith and fair dealing concerning defendants' hiring of the representative at the art show. Plaintiffs seek damages in the amount not less than $80,300. In support of their motion, defendants contend that the Court ruled, on February 24, 2:015, that defendants were entitled to recover the balance of the costs and fees they sustained after the first sanction was issued while proceedings continued and plaintiffs continued to seek to set aside the Court's dismissal of their complaint. Thus, defendants seek such costs and fees herein. Defendants further seek summary dismissal of the complaint on the ground that no evidence exists to support the claims. Discovery shows that no amounts are due to either plaintiff under the arrangement between the parties, and Lerch's claim regarding the Palm Beach Art Show fail because there was agreement between the parties concerning this event, and the Statute of Frauds bars any claim for commission claimed to have been earned for negotiating the 3 sale of the jewelry. Defendants should be reimbursed 100% of attorneys fees and costs in defending this suit. Further, defendants argue that a stay of this action is warranted because they should not be required to defend this suit while the judgment issued against plaintiffs during this litigation remains unpaid. And, defendants seek an order directing plaintiffs to disclose and give testimony of th~;:ir liquid assets in order to permit defendants to enforce the orders or judgments (entered April 30, 2015) of the Court. In opposition, plaintiffs essentially argue that the motion is untimely, premature, lacks merit, and defeated by issues of fact as to plaintiffs' claims. Further, plaintiffs request compliance with their discovery demands. 3 Discussion It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action ... has no merit" (CPLR §3212[b]) sufficient to warrant the court as a matter of law to direct judgment in its favor (Friedman v BHL Realty Corp., 83 AD3d 510, 922 NYS2d 293 [l5t Dept 2011]; Winegrad v New York Univ. Med Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). Thus, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter oflaw, by advancing sufficient "evidentiary proof in admissible form" to demonstrat~: the absence of any material issues of fact (Madeline D 'Anthony Enterprises, Inc. v Sokolowsky, 101 3 Oral argument on the motion was held on June 23, 2015, which resulted in a further submission by defendants' counsel addressing, inter alia, his attorney registration status. 4 AD3d 606, 957 NYS2d 88 [Pt Dept 2012] citing Alvarez v Prospect Hosp., 68 NY2d 320, 501 NE2d 572 [1986] and Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Powers ex rel. Powers v 31E31LLC,24 NY3d 84 [2014]). When such a showing is made, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (CPLR §3212 [b]; Farias v Simon, 122 AD3d 466 [1st Dept 2014]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" for this purpose" (Kosovsky v Park South Tenants Corp., 45 Misc.3d 1216(A), 2014 WL 5859387 [Sup Ct New York Cty 2014] citing Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]). The opponent "must assemble, lay bare, and reveal his proofs in order to show his defenses are real and capable of being established on trial ... and it is insufficient to merely set forth averments of factual or legal conclusions" (Genger v Genger, --- NYS2d ----, 2014 WL 6803487 [Pt Dept 2014] citing Schiraldi v US. Min. Prods., 194 AD2d 482, 483 [1st Dept 1993 ]). In other words, the "issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief' (American Motorists Ins. Co. v Salvatore, 102 AD2d 342, 476 NYS2d 897 [1st Dept 1984]; see also, Armstrong v Sensormatic/ADT, 100 AD3d 492, 954 NYS2d 53 [!81 Dept2012]). As to defendants' application for further sanctions against plaintiffs and their counsell based on plaintiffs' conduct concerning discovery, and costs and attorneys fees incurred by defendants' in responding to Lerch's criminal complaint, and costs in pursuing this motion, such request is denied. Plaintiffs' conduct relating to discovery has already been addressed and an orders issued (see August 26, 2014 and February 24, 2015 orders directing a hearing on the issue of costs and attorneys' fees, and confirming the recommendation of $17,441.95, respectively). 5 With respect to the criminal complaint, defendants' quotation of the Court's statement is taken out of context. At the February 24, 2015 hearing, the Court stated: MR. TOFEL: ... May we make such an application [for attorneys' fees and costs incurred in connection with this exercise] because the defendants have been put - - as you just heard, the [criminal] complaint should never have been filed. I know that it was filed at the utmost in bad faith because there is proof that they threatened to file it. ***** ... they have carried through on their threat just to cause my client to incur costs. THE COURT: Your client is going to get all the attorneys' fees and costs related to the litigation. I still don't have really concrete proof of anything with respect to the criminal - - this complaint that was filed to show that it was willful, contumacious, which would be a basis for sanctions. I don't have that. I'm going on what I have to move forward. (Transcript, p. 32) (Emphasis added). The Court finds no basis for the costs defendants' seek related to the criminal complaint filed by plaintiffs, and the Court's statements above do not constitute rulings so holding. Therefore, the branch of defendants' motion for sanctions is denied. As to defendants' request for summary judgment,4 such request is unwarranted. Tapper's sole claim is one for breach of contract concerning the jewelry suite. Both plaintiffs interrogatories, on which defendants rely for dismissal, state that the parties initially agreed that defendants would create two pendents, at plaintiffs' cost of $45,000 (Lerch Interrogatory, if9 ("defendants were given a total of 45k. originally they were going to produce two momento mori pendants"; Tapper Interrogatory, 'i[25 ("defendants were given a total of 45. 4 To the degree defendants' request "additional sanctions for the wrongful and intentionally abusive and harassing pursuit of claims, including a criminal complaint, which plaintiffs' tardy discovery now reveals were knowingly false and which seek relief to which plaintiffs now acknowledge they are not and never were entitled;" such request is denied. 6 originally they were going to produce two mm pendants .... "). Both stated that one was for Tapper, and the other was for "resale, and we would split the profit on the second" one (Tapp~:r Interrogatory, ~25" (emphasis added); see also Lerch Interrogatory, ~25"}. Therefore, such interrogatories indicate that at the time defendants were paid $45,000.00, the parties understood that defendants would produce two pendents, one of which would be sold at a profit to be equally shared among the parties. Defendants, on the other hand state, that Lerch requested ARK to create a pendent as a gift for Tipper, and if she "liked the pendant after the molds and design work were completed, ARK would produce a second (and identical) piece for" her to keep, with the first piece to be sold for profits which would be split evenly. According to defendants, Lerch sent both checks totaling $45,000. Both parties agree, however, that thereafter, the parties agreed to modify defendants' production to include a ring and a pendent (instead of two pendants), for "sale with a split of the profit above the 45K cost between ark and lerch." (Lerch Interrogatory, ~25; defendants' affidavits, ~6). According to defendants, Lerch and ARK agreed that a ring "would be made,"'5 and "the two resulting pieces would be coordinated and sold together, with the profits being split evenly." (Defendants' affidavits, ~6). Therefore, the record establishes that the parties agreed that defendants would create a ring and pendant for sale, the profits of which would be split evenly between Lerch and Ark. Defendants attest that cost estimates were revised at that time to $55,000 (Defendants' affidavits, ~6). Defendants further state that the $10,000 additional costs would be due "when completed." (Defendants' affidavits, ~9). Defendants also submit an email 5 It is uncontested that Tipper later did not want the pendant, and thus, the parties agreed for defendant to create ring instead. 7 dated June 9, 2011 from Anatoly to Tipper, wherein Anatoly clarified that ARK expected "payment of the additional $10,000 upon completion of production. Then once we sell the suilte, we will share the profits equally." Tipper responded, "Thanks for clarifying but the ring and pendant are being made for me. IfI don't like them, only then will they be sold by [Lerch] no tus. It's his money. Lizzie." Lerch states that the pendant and ring were to be produced "for a price of $45,000 which I paid for" (Lerch Interrogatory, iJ9). Tipper similarly states in her interrogatory answers that the "suite" would be for sale, "splitting the profit above the 45k cost." Thus, as plaintiffs assert that the total cost of the ring and pendent was $45,000, and defendants maintain that the cost was $55,000, an issue of fact as to a material term of the parties' agreement exists (see DerOhannesian v City ofAlbany, 110 AD3d 1288, 975 NYS2d 188 [3d Dept 2013]; see also, Brennan Beer Gorman/Architects, LLP v Cappelli Enterprises, Inc., 85 AD3d 482, 925 NYS2d 25 [1st Dept 2011] (describing price of services as a material term)). The documents submitted by the movant, defendants herein, fail to establish that issues of fact do not exist as to the price of the jewelry suite, the payment of which triggers the sale of same for profits to be split by the parties. While defendants maintain that upon completion, Lerch would pay ARK "the balance" and ARK would then sell the pieces and divide the profits evenly (Defendants' affidavits, iJ9), and that jewelry suite "is complete and has been for some time," defendants failed to establish any agreement on the part of any plaintiff to pay the balance of $10,000. And, the above email indicates that Lerch was the party responsible for the sale of jewelry suite upon its completion. Thus, while defendants maintain that the pendent and ring are complete, they have not established, as a matter of law, that either Tipper or Lerch agreed to pay the additional $10,000 for the ring, such that plaintiffs' failure to pay such amount relieved defendants' of their 8 obligations under the agreement so as to support summary dismissal of plaintiffs' breach of contract claim. Defendants also failed to establish that the Statute of Frauds §5-701 bars Lerch's claims for breach of contract and implied covenant of good faith in connection with his sale of defendants' jewelry at the Palm Beach Art Show. The section relied upon by defendants provides: a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: 10. Is a contract to pay compensation for services rendered in negotiating a loan, or in negotiating the purchase, sale, exchange, renting or leasing of ... a business opportunity . .. including the creating of a partnership interest. "Negotiating" includes procuring an introduction to a party to the transaction or assisting in the negotiation or consummation of the transaction. Defendants' claim that plaintiffs seek compensation for negotiating the sales of ARK's jewelry or for introducing prospective customers ignores the amended complaint and interrogatory responses of Lerch. The "statute of frauds is generally inapplicable to an agreement to create a joint venture (Foster v Kovner, 44 AD3d 23, 840 NYS2d 328 (1st Dept 2007] citing FS. Intertrade Off Prods. v Babina, 199 AD2d 95, 96, 605 NYS2d 57 [1993], Iv denied 83 NY2d 757, 615 NYS2d 875, 639 N.E.2d 416 [1994]). "This is because, absent any definite term of duration, an oral agreement to form a ... joint venture for an indefinite period creates a partnership or joint venture at will" (Foster v Kovner, 44 AD3d 23; Massey v Byrne, 112 AD3d 532, 977 NYS2cl 242 [1st Dept 2013]). While defendants established that no written agreement existed between Lerch and 9 defendants concerning the Palm Beach Art Show, the record contains several examples of Lerch's claim that he and ARK entered into a joint venture agreement, wherein Lerch agreed to pay the costs associated with the sale of ARK's jewelry at the Show, and share in the profits of the sale (Moses v Savedojf, 96 AD3d 466, 947 NYS2d 419 [1st Dept 2012] (defendant's statut1:~of frauds argument lacked merit where "the parties' alleged agreement to share in the profits of certain cases, when reasonably interpreted, could have been performed within one year")). Thus, dismissal of the second and third causes of action based on the Statute of Frauds is denied. It is noted that there is no merit to plaintiffs' objections that (1) the plaintiffs' previous September 22, 2014 motion to vacate is outstanding,6 (2) the instant motion is untimely filed pursuant to this Court's April 14, 2014 order directing same be file within 30 days; 7 and (3) defendant's counsel is precluded from practice oflaw due to the delinquent status of his attorney registration, defendants failed to establish entitlement to summary dismissal of plaintiffs' claims. 8 Also insufficient is plaintiffs' contention that defendants' failure to mail plaintiffs a 6 The September 22, 2014 motion to vacate was resolved pursuant to an order dated February 24, 2015, in "accordance with the 'So-Ordered' transcript held on today's date." Said order also ruled that the "within action is restored." 7 The motion was filed on May 14, 2014, and plaintiffs cite no authority for the positionthat the fact that certain exhibits were filed a day or so thereafter renders the motion untimely under the circumstances. 8 A "person is authorized to practice law if that person has been admitted to practice and has taken the requisite oath" (Benjamin v Koeppel, 85 NY2d 549, 650 N.E.2d 829 (1995] citing Judiciary Law§§ 478, 466, and 476-a[l][b]). "Admission is governed by Judiciary Law§ 90, which refers only to certification by the State Board of Law Examiners, consideration by the Appellate Division of the applicant's general fitnes~ and character and compliance with the Court of Appeals and Appellate Division rules "relating to the admission of attorneys" (Benjamin, supra). Neither "section 90 nor the statute authorizing admitted attorneys to practice law mentions section 468-a's registration requirement" (id). "Judiciary Law § 468-a(5) provides that noncompliance with the registration requirement and accompanying rules 'shall be referred to the appropriate appellate division,' which imposes "disciplinary sanctions tailored to the particular case" (id). Here, plaintiff failed to demonstrate that a delinquency in one's attorney registration precludes one from the practice of law, as a matter oflaw. Plaintiff also failed to demonstrate that defense counsel was ever suspended from the practice oflaw. In any event, defense counsel cured the delinquency status. 10 copy of the recording and failure to properly file same with the Court as directed renders the motion untimely. The recording, which is submitted to support defendants' request for sanctions based on Tapper's purported intent to make defendants' "lives miserable," is not submitted to establish the terms of the parties' agreement. Therefore, any failure to exchange the recording is inconsequential as to the summaryjudgment portion of the motion. Further, plaintiffs' claim that outstanding discovery renders plaintiffs' motion for summary judgment premature, is insufficient (Hariri v Amper, 51AD3d146, 854 NYS2d 126 [Pt Dept 2008]; see Carroll v Radoniqi, 105 AD3d 493, 963 NYS2d 97 [Pt Dept 2013] (a "claimed need for discovery, without some evidentiary basis indicating that discovery may lead to relevant evidence, is insufficient to avoid an award of summary judgment")). However, this claim, as well as plaintiffs' claim that defendants have yet to comply plaintiffs' discovery demands previously served on July 2, 2013 and March 24, 2014 and should be directed to comply with the March 24, 2014 demand, will be addressed at a status conference. Therefore, notwithstanding plaintiffs' inadequate opposition, defendants' failure to demonstrate entitlement to judgment as a matter of law and the absence of triable issues of fact results in the denial of the motion, regardless of the sufficiency of the opposing papers (Corprew v City ofNew York, 106 AD3d 524, 965 NYS2d 108 [1st Dept 2013]; TrizecHahn, Inc. v Timbil Chiller Maintenance Corp., 92 AD3d 409, 937 NYS2d 586 [1st Dept 2012]; Santos v New York City Transit Authority, 99 AD3d 550, 952 NYS2d 179 [1st Dept 2012]). However, as to defendants' request for a stay of any further proceedings by plaintiffs herein, unless and until they pay the April 30, 2015 Judgment entered against them, and satisfy any subsequent orders entered against them herein and directing each plaintiff to provide full and 11 complete certified liquid asset disclosure to defendants, including oral examinations, for the purposes of enabling defendants to satisfy the Judgment is denied without prejudice at this juncture, to be addressed at a further status conference. Conclusion Based on the above, it is hereby ORDERED that defendants' motion is denied, except that defendants' request for a stay of any further proceedings by plaintiffs herein, unless and until they pay the April 30, 2015 Judgment entered against them, and satisfy any subsequent orders entered against them herein and directing each plaintiff to provide full and complete certified liquid asset disclosure to defendants, including oral examinations, for the purposes of enabling defendants to satisfy the Judgment is denied without prejudice at this juncture, to be addressed at a further status conference; and it is further ORDERED that the parties shall appear for a status conference on September 15, 2015, 3 :00 p.m.; and it is further ORDERED that defendants shall serve a copy of this order with notice of entry upon all parties within 20 days of entry. This constitutes the decision and order of the Court. Dated: July 24, 2015 Hon. Carol Robinson Edmead, J.S.C. 12