Preview
FILED: SARATOGA COUNTY CLERK 10/22/2020 11:35 AM INDEX NO. 20162946
NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/22/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SARATOGA
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WEN MEI LU, CHIN CHUNG LIN LU, Index No. 2016/2946
LI HUA LU AND LU HOLDING, LLC,
Plaintiffs,
- Against -
WEN YING GAMBA, YUEN HSIANG LU, AFFIRMATION
And WEN FU LU,
Defendants.
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MARC E. FREUND, an attorney admitted to practice before the Courts of the State of New
York, hereby affirms the truth of the following upon information and belief and under penalties of
perjury:
1. I am a member of the firm of LIPSIG, SHANEY, MANUS & MOVERMAN, P.C.
(“Lipsig”), attorneys for Non-Party Xiang Wei Gao. As such, I am fully familiar with the facts
and circumstances of the within action.
2. This Affirmation is submitted in support of the within motion seeking an Order
pursuant to CPLR §§ 1001, 1017 and 6401, granting permission to join David A. Harper, Esq., the
duly-appointed receiver for real property located at 175 South Broadway, Saratoga Springs, New
York 12866 (the “Property”) as a party defendant in an action entitled “Xiang Wei Gao v. Chuen
Lou, LLC and Lu Holding, LLC, et ano,” venued in the Supreme Court of the State of New York,
County of Kings under Index Number 505616/2018 (the “Kings County Action”), together with
such other and further relief as this Court deems just and proper.
3. Lipsig represents Xiang Wei Gao (“Mr. Gao”) as plaintiff in the Kings County
Action (see Plaintiff’s Complaint, Defendant LU HOLDING, LLC’s Answer, Defendant CHUEN
LOU, LLC’s Answer, Defendant CHUEN LOU, LLC’s Third-Party Complaint, and Third-Party
Defendant DUO JAPANESE CUISING INC. and MING MEI LIN’s Answer to the Third-Party
Complaint, annexed hereto as Exhibits “A,” “B,” “C,” “D,” and “E,” respectively.
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4. The Kings County Action concerns claims for personal injuries sustained by Mr.
Gao on or about January 27, 2018 arising out of the ownership, management, operation, and
control of the Property.
5. In the course of prosecuting the Kings County Action, Lipsig learned that Mr.
Harper was appointed as Receiver for the Property by virtue of this Court’s July 6, 2017 Order,
entered July 14, 2017 (Exhibit “F”). Mr. Harper’s appointment was thereafter extended throughout
the pendency of the present action (Exhibit “G”).
6. Therefore, on the date of Mr. Gao’s incident, the Property was under the exclusive
control of Mr. Harper as this Court’s duly appointed receiver. As such, Mr. Harper should be
made a party defendant in the Kings County Action in his capacity as receiver.
7. Mr. Gao has standing to interpose the within motion. See CPLR § 6401 (“A motion
made by a person not already a party to the action constitutes an appearance in the action and the
person shall be joined as a party.”)
8. CPLR § 1017 states in relevant part as follows:
If a receiver is appointed for a party…the court shall order
substitution of the proper parties.
9. Pursuant to both CPLR § 1017 and 6401, leave of court that appointed a receiver is
a prerequisite to joining a receiver in another action. See generally Copeland v. Salomon, 56
N.Y.2d 222, 227-228, 451 N.Y.S.2d 682, 686 (1982) (Tort suit against a receiver by a third party
for harm occurring in relation to a property during the period of receivership generally requires the
advance permission of the court that appointed the receiver); see also TransWorld Maintenance
Services v. Fort Tryon Apartment Corp., 166 Misc.2d 250, 632 N.Y.S.2d 775 (Civ.Ct., N.Y. Co.
1995) (Leave of court that appointed receiver is a prerequisite to joining receiver as party defendant
in another action); Independence Sav. Bank v. Triz Realty Corp., 100 A.D.2d 613, 473 N.Y.S.2d
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568 (2nd Dept 1984) (Receiver may not sue or be sued without express permission of court that
appointed him).
10. It is seminal law that in actions for personal injuries sustained during the time that
a property was under the control of a court-appointed receiver, said receiver may be held liable, as
receiver, for negligence occurring on the premises. See e.g. Birch-Field v. Davenport Shore Club,
233 A.D. 787, 227 N.Y.S. 684 (2nd Dept. 1928). Even if an alleged defective condition on a
property had existed prior to the receiver’s appointment, the property owners’ liability for that
condition ends when possession and control passes prior to injury and receiver had reasonable time
to discover and repair the condition. Mazurick v. Chalos, 172 A.D.2d 805, 569 N.Y.S.2d 174 (2nd
Dept. 1991); see also Morgan v. Steingut, 157 Misc. 215, 282 N.Y.S. 378 (Sup.Ct., Queens Co.,
1935) (Receiver empowered to make repairs held chargeable in tort for failure to make such
repairs, where there existed a dangerous and defective condition constituting a nuisance).
11. Here, this Court appointed Mr. Harper as a receiver of the Property on or about July
6, 2017, Mr. Gao’s accident occurred on January 7, 2018, and Mr. Harper’s receivership continues
to date. The Kings County Action alleges tort in conjunction with a dangerous, transitory, snow
and ice condition existing at the Property (Exhibit “A”). Thus, Mr. Harper is a necessary party
defendant in the Kings County Action, who may be held liable in that action for negligence in
permitting the said dangerous condition to exist on January 7, 2018.
12. The July 6, 2017 Order appointing Mr. Harper as receiver empowers him to, inter
alia, “institute and carry on all legal proceedings necessary for the protection of the
Properties…[and] act as manager and landlord of the Properties…” (Exhibit “F” at page 2) Said
Order also empowers Mr. Harper to “keep the Properties insured…[and] to comply with all the
lawful requirements of any municipal department or other authority…” (Id., at page 3)
13. Lipsig was unaware that a receiver had been appointed for the Property until July
2, 2020, when Defendant LU HOLDING, LLC in the Kings County action moved for summary
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judgment, in which said defendant included this Court’s Order appointing Mr. Harper as receiver
as well as the subsequent Order extending Mr. Harper’s appointment as its Exhibits “Q” and “R”,
respectively (see NYSCEF Doc. Nos. 117 and 118 in the Kings County Action; see also Exhibit
“H” annexed hereto). Thereafter, Third-Party Defendants DUO JAPANESE CUISINE INC. and
MING MEI LIN also moved for summary judgment, seeking a dismissal of the Third-Party
Complaint (Exhibit “I”).
14. In light of the above, Mr. Gao respectfully requests that this Court issue an Order
pursuant to CPLR §§ 1001, 1017 and 6401, granting permission to join David A. Harper, Esq., the
duly-appointed receiver for real property located at 175 South Broadway, Saratoga Springs, New
York 12866 (the “Property”) as a party defendant in the Kings County Action.
WHEREFORE, non-party Xiang Wei Gao respectfully requests that this Court grant the
within application, together with such other and further relief which this Court deems just and
proper.
_____________________________
MARC E. FREUND
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Preview
FILED: SARATOGA COUNTY CLERK 10/22/2020 11:35 AM INDEX NO. 20162946 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/22/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SARATOGA ------------------------------------------------------------------X WEN MEI LU, CHIN CHUNG LIN LU, Index No. 2016/2946 LI HUA LU AND LU HOLDING, LLC, Plaintiffs, - Against - WEN YING GAMBA, YUEN HSIANG LU, AFFIRMATION And WEN FU LU, Defendants. ------------------------------------------------------------------X MARC E. FREUND, an attorney admitted to practice before the Courts of the State of New York, hereby affirms the truth of the following upon information and belief and under penalties of perjury: 1. I am a member of the firm of LIPSIG, SHANEY, MANUS & MOVERMAN, P.C. (“Lipsig”), attorneys for Non-Party Xiang Wei Gao. As such, I am fully familiar with the facts and circumstances of the within action. 2. This Affirmation is submitted in support of the within motion seeking an Order pursuant to CPLR §§ 1001, 1017 and 6401, granting permission to join David A. Harper, Esq., the duly-appointed receiver for real property located at 175 South Broadway, Saratoga Springs, New York 12866 (the “Property”) as a party defendant in an action entitled “Xiang Wei Gao v. Chuen Lou, LLC and Lu Holding, LLC, et ano,” venued in the Supreme Court of the State of New York, County of Kings under Index Number 505616/2018 (the “Kings County Action”), together with such other and further relief as this Court deems just and proper. 3. Lipsig represents Xiang Wei Gao (“Mr. Gao”) as plaintiff in the Kings County Action (see Plaintiff’s Complaint, Defendant LU HOLDING, LLC’s Answer, Defendant CHUEN LOU, LLC’s Answer, Defendant CHUEN LOU, LLC’s Third-Party Complaint, and Third-Party Defendant DUO JAPANESE CUISING INC. and MING MEI LIN’s Answer to the Third-Party Complaint, annexed hereto as Exhibits “A,” “B,” “C,” “D,” and “E,” respectively. 1 of 4 FILED: SARATOGA COUNTY CLERK 10/22/2020 11:35 AM INDEX NO. 20162946 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/22/2020 4. The Kings County Action concerns claims for personal injuries sustained by Mr. Gao on or about January 27, 2018 arising out of the ownership, management, operation, and control of the Property. 5. In the course of prosecuting the Kings County Action, Lipsig learned that Mr. Harper was appointed as Receiver for the Property by virtue of this Court’s July 6, 2017 Order, entered July 14, 2017 (Exhibit “F”). Mr. Harper’s appointment was thereafter extended throughout the pendency of the present action (Exhibit “G”). 6. Therefore, on the date of Mr. Gao’s incident, the Property was under the exclusive control of Mr. Harper as this Court’s duly appointed receiver. As such, Mr. Harper should be made a party defendant in the Kings County Action in his capacity as receiver. 7. Mr. Gao has standing to interpose the within motion. See CPLR § 6401 (“A motion made by a person not already a party to the action constitutes an appearance in the action and the person shall be joined as a party.”) 8. CPLR § 1017 states in relevant part as follows: If a receiver is appointed for a party…the court shall order substitution of the proper parties. 9. Pursuant to both CPLR § 1017 and 6401, leave of court that appointed a receiver is a prerequisite to joining a receiver in another action. See generally Copeland v. Salomon, 56 N.Y.2d 222, 227-228, 451 N.Y.S.2d 682, 686 (1982) (Tort suit against a receiver by a third party for harm occurring in relation to a property during the period of receivership generally requires the advance permission of the court that appointed the receiver); see also TransWorld Maintenance Services v. Fort Tryon Apartment Corp., 166 Misc.2d 250, 632 N.Y.S.2d 775 (Civ.Ct., N.Y. Co. 1995) (Leave of court that appointed receiver is a prerequisite to joining receiver as party defendant in another action); Independence Sav. Bank v. Triz Realty Corp., 100 A.D.2d 613, 473 N.Y.S.2d 2 of 4 FILED: SARATOGA COUNTY CLERK 10/22/2020 11:35 AM INDEX NO. 20162946 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/22/2020 568 (2nd Dept 1984) (Receiver may not sue or be sued without express permission of court that appointed him). 10. It is seminal law that in actions for personal injuries sustained during the time that a property was under the control of a court-appointed receiver, said receiver may be held liable, as receiver, for negligence occurring on the premises. See e.g. Birch-Field v. Davenport Shore Club, 233 A.D. 787, 227 N.Y.S. 684 (2nd Dept. 1928). Even if an alleged defective condition on a property had existed prior to the receiver’s appointment, the property owners’ liability for that condition ends when possession and control passes prior to injury and receiver had reasonable time to discover and repair the condition. Mazurick v. Chalos, 172 A.D.2d 805, 569 N.Y.S.2d 174 (2nd Dept. 1991); see also Morgan v. Steingut, 157 Misc. 215, 282 N.Y.S. 378 (Sup.Ct., Queens Co., 1935) (Receiver empowered to make repairs held chargeable in tort for failure to make such repairs, where there existed a dangerous and defective condition constituting a nuisance). 11. Here, this Court appointed Mr. Harper as a receiver of the Property on or about July 6, 2017, Mr. Gao’s accident occurred on January 7, 2018, and Mr. Harper’s receivership continues to date. The Kings County Action alleges tort in conjunction with a dangerous, transitory, snow and ice condition existing at the Property (Exhibit “A”). Thus, Mr. Harper is a necessary party defendant in the Kings County Action, who may be held liable in that action for negligence in permitting the said dangerous condition to exist on January 7, 2018. 12. The July 6, 2017 Order appointing Mr. Harper as receiver empowers him to, inter alia, “institute and carry on all legal proceedings necessary for the protection of the Properties…[and] act as manager and landlord of the Properties…” (Exhibit “F” at page 2) Said Order also empowers Mr. Harper to “keep the Properties insured…[and] to comply with all the lawful requirements of any municipal department or other authority…” (Id., at page 3) 13. Lipsig was unaware that a receiver had been appointed for the Property until July 2, 2020, when Defendant LU HOLDING, LLC in the Kings County action moved for summary 3 of 4 FILED: SARATOGA COUNTY CLERK 10/22/2020 11:35 AM INDEX NO. 20162946 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/22/2020 judgment, in which said defendant included this Court’s Order appointing Mr. Harper as receiver as well as the subsequent Order extending Mr. Harper’s appointment as its Exhibits “Q” and “R”, respectively (see NYSCEF Doc. Nos. 117 and 118 in the Kings County Action; see also Exhibit “H” annexed hereto). Thereafter, Third-Party Defendants DUO JAPANESE CUISINE INC. and MING MEI LIN also moved for summary judgment, seeking a dismissal of the Third-Party Complaint (Exhibit “I”). 14. In light of the above, Mr. Gao respectfully requests that this Court issue an Order pursuant to CPLR §§ 1001, 1017 and 6401, granting permission to join David A. Harper, Esq., the duly-appointed receiver for real property located at 175 South Broadway, Saratoga Springs, New York 12866 (the “Property”) as a party defendant in the Kings County Action. WHEREFORE, non-party Xiang Wei Gao respectfully requests that this Court grant the within application, together with such other and further relief which this Court deems just and proper. _____________________________ MARC E. FREUND 4 of 4