Preview
FILED: SARATOGA COUNTY CLERK 07/14/2021 03:25 PM INDEX NO. 20162946
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 07/14/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF SARATOGA
WEN MEI LU, CHIN CHUNG LIN LU,
LI HUA LU AND LU HOLDING, LLC
Plaintiffs,
Index No: 2016-2946
-against-
RJI No.: 45-1-2016-1480
WEN YING GAMBA, YUEN HSIANG LU,
and CHUEN LOU, LLC
Defendants.
Defendants'
Attorney Affirmation in Support of
Motion to Continue the Rêccircrship
STATE OF NEW YORK }
}ss.:
COUNTY OF ALBANY }
TIMOTHY S. BRENNAN, ESQ., being duly sworn, deposes and states:
1. I am an attorney duly licensed to practice in the Courts of the State of New York
and am apartner with the law firm of Phelan, Phelan & Danek, LLP, attorneys for defendants. As
such, I am familiar with facts and circumstances stated herein, based upon a review of the file
maintained by my office.
defendants'
2. I make this affirmation in support of order to show cause to maintain
defendants'
the Receivership. While it is position that a motion is not necessary to maintain the
(A0548783.1)
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Receiver, they are submitting this application out of abundance of caution and in recognition of
the prejudice that would befall them if the Receiver is discharged.
3. The following exhibits are submitted in support of this application:
Plaintiffs'
Exhibit A: Motion for the Receiver
Exhibit B: Emails demonstrating violation of Receivership Order
Exhibit C: Affidavit of Non-Service on Duo
Exhibit D: Partial Transcript of IrisLu's testimony.
4. Plaintiffs commenced this action against their family asserting a variety of theories
allof which are targeted at obtaining ownership of two parcels of real property in Saratoga, and
one in Guilderland.
5. Throughout the pendency of this action, the Saratoga Properties have been under
Receivership. A jury trial was conducted before this Honorable Court
6. At the conclusion of the trial,the Jury awarded judgment in favor of plaintiffs. Prior
to the verdict, defendants made an application for a directed verdict arguing, among other things
that they were entitled to judgment as a matter of law on the issue of "unclean hands".
7. At the conclusion of the trial, defendants renewed their application for a directed
verdict and this Honorable Court set a briefing schedule requiring the motion to be filed by
September.
8, In the interim, plaintiffs filed a proposed judgment including a provision for the
discharge of the Receiver,
9. Defendants objected to the discharge of the Receiver and now filethe present Order
to Show Cause requesting that the Receiver remain in place pending resolution of the Post-Trial
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Motion and, if necessary, for long enough to permit defendants to request that the Appellate
Division maintain the Receiver during the pendency of any appeal.
10. As argued in greater detail in the accompanying memorandum of law, the
Receivership should be continued during the pendency of this matter since, among other things
defendants have strong legal arguments that are likely to result in a reversal of the jury's verdict.
Further, discharging the receiver would be manifestly prejudicial at this stage.
11. In fact, the Receiver was requested by plaintiffs who, at that time, acknowledged
that need for a receiver to protect the status quo [Exhibit A, Plaintiff's Motion for the Receiver].
12. Over the course of this litigation, the parties have sharply disagreed with the maññer
in which the properties should be handled.
13. If the Receivership were to be terminated, it is evident that defeñdants could be
irreparable harmed by the decisions that plaintiffs may make with respect to the properties.
14. For example, one of the properties is vacant currently. If the receivership is ended,
plaintiffs may enter a long-term lease or take other action that would leave the property
encumbered.
15. These very concerns were foisted by plaintiffs in support of their application for the
initial appointment of the Receiver and nothing has changed except the proverbial "shoe is on the
foot" Plaintiffs'
other [Exhibit A, Motion].
16. As plaintiffs themselves put it when they sought to continue the Receiver after the
first Appeal, "the circumstances have not changed in any way since the Appellate Division held
that a preliminary injunction and temporary receivership are necessary, such that the Appellate
here"
Division's findings [on the Receivership] are the law of the case and binding [Exhibit A,
Crain Affirmation in Support, at ¶ 12].
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17, Simply put, to continue the receivership will "maintain the status quo while the
parties [continue to] litigate a complicated family dispute, and will conserve the resources of both
parties"
the Court and the [Exhibit A, Crain Affirmation in Support, at ¶ 17].
18, "The receivership has allowed the parties to navigate [various] dispute[s] without
role"
the need for judicial intervention, due largely in part to Mr. Harper's authoritative [Exhibit
A, Crain Affirmation in Support, at ¶ 14].
19. As plaintiffs put it when they were seeking an injunction and the receivership,
"[d]estruction and material alterations to real property, during the pendency of a dispute regarding
law"
ownership, constitute irreparable harm as a matter of [Exhibit A, Crain Affirmation in
Support, at ¶ 143],
20. Aside from this, the Receiver has collected substantial rent over the pendency of
this action and those funds should not be released to plaintifu until the issues are conclusively
resolved in their favor after resolution of the post-trial motions and, if necessary, the appeal.
21, Indeed, even has of the filing of this motion plaintiffs and Duo have already
k;;G;vi;;g.'v circumvented the Receiver and personally collected rent from the Duo property in
direct violation of the current Receivership order [Exhibit B, Emails].
22, In this respect on July 8, Duo requested that the Receiver advise as to whom they
should pay the July rent, In no uncertain terms, Duo was advised that the rent was to be paid to
the Receiver pursuant to the stillapplicable order [Exhibit B].
23. Despite this, Duo and Iris Lu arranged for her to take the rent directly, They did so
despite knowing that the issue had been presented to this Honorable Court and the order was still
applicable.
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24. Simply put, circumstances such as this demonstrate the need for a continued
receivership. There is simply no chance of good faith absent the receivership and, as argued in the
memorandum of law, defendants would be irreparably harmed if the receivership were to be
discontinued.
25. In there is a significant likelihood that the verdict will be overturned post-
short, by
trial motion and/or appeal and defendants would be irreparably harmed if the receivership is
terminated.
Conclusion
WHEREFORE, defendants respectfully request that this Honorable Court: (1) GRANT an
order continuing the imposition of the Receivership pending resolution of the Post-Trial Motion
and, if necessary, the Appeal from the Judgment; and (2) GRANT such other and further relief as
itdeems just proper.
Dated: July 14, 2021
Albany, New York
Yours, etc.,
PHELAN, PHELAN & DANEK, LLP
By.
TIMOTHY S. BRENNAN
Attorneys for Defendants
WEN YING GAMBA, YUEN
HSIANG LU and WEN FU LU
300 Great Oaks Blvd., Suite 315
Albany, New York 12203
(518) 640-6900
(AOS48783.1)
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Preview
FILED: SARATOGA COUNTY CLERK 07/14/2021 03:25 PM INDEX NO. 20162946 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 07/14/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF SARATOGA WEN MEI LU, CHIN CHUNG LIN LU, LI HUA LU AND LU HOLDING, LLC Plaintiffs, Index No: 2016-2946 -against- RJI No.: 45-1-2016-1480 WEN YING GAMBA, YUEN HSIANG LU, and CHUEN LOU, LLC Defendants. Defendants' Attorney Affirmation in Support of Motion to Continue the Rêccircrship STATE OF NEW YORK } }ss.: COUNTY OF ALBANY } TIMOTHY S. BRENNAN, ESQ., being duly sworn, deposes and states: 1. I am an attorney duly licensed to practice in the Courts of the State of New York and am apartner with the law firm of Phelan, Phelan & Danek, LLP, attorneys for defendants. As such, I am familiar with facts and circumstances stated herein, based upon a review of the file maintained by my office. defendants' 2. I make this affirmation in support of order to show cause to maintain defendants' the Receivership. While it is position that a motion is not necessary to maintain the (A0548783.1) 1 of 5 FILED: SARATOGA COUNTY CLERK 07/14/2021 03:25 PM INDEX NO. 20162946 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 07/14/2021 Receiver, they are submitting this application out of abundance of caution and in recognition of the prejudice that would befall them if the Receiver is discharged. 3. The following exhibits are submitted in support of this application: Plaintiffs' Exhibit A: Motion for the Receiver Exhibit B: Emails demonstrating violation of Receivership Order Exhibit C: Affidavit of Non-Service on Duo Exhibit D: Partial Transcript of IrisLu's testimony. 4. Plaintiffs commenced this action against their family asserting a variety of theories allof which are targeted at obtaining ownership of two parcels of real property in Saratoga, and one in Guilderland. 5. Throughout the pendency of this action, the Saratoga Properties have been under Receivership. A jury trial was conducted before this Honorable Court 6. At the conclusion of the trial,the Jury awarded judgment in favor of plaintiffs. Prior to the verdict, defendants made an application for a directed verdict arguing, among other things that they were entitled to judgment as a matter of law on the issue of "unclean hands". 7. At the conclusion of the trial, defendants renewed their application for a directed verdict and this Honorable Court set a briefing schedule requiring the motion to be filed by September. 8, In the interim, plaintiffs filed a proposed judgment including a provision for the discharge of the Receiver, 9. Defendants objected to the discharge of the Receiver and now filethe present Order to Show Cause requesting that the Receiver remain in place pending resolution of the Post-Trial {A0548783.1) 2 of 5 FILED: SARATOGA COUNTY CLERK 07/14/2021 03:25 PM INDEX NO. 20162946 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 07/14/2021 Motion and, if necessary, for long enough to permit defendants to request that the Appellate Division maintain the Receiver during the pendency of any appeal. 10. As argued in greater detail in the accompanying memorandum of law, the Receivership should be continued during the pendency of this matter since, among other things defendants have strong legal arguments that are likely to result in a reversal of the jury's verdict. Further, discharging the receiver would be manifestly prejudicial at this stage. 11. In fact, the Receiver was requested by plaintiffs who, at that time, acknowledged that need for a receiver to protect the status quo [Exhibit A, Plaintiff's Motion for the Receiver]. 12. Over the course of this litigation, the parties have sharply disagreed with the maññer in which the properties should be handled. 13. If the Receivership were to be terminated, it is evident that defeñdants could be irreparable harmed by the decisions that plaintiffs may make with respect to the properties. 14. For example, one of the properties is vacant currently. If the receivership is ended, plaintiffs may enter a long-term lease or take other action that would leave the property encumbered. 15. These very concerns were foisted by plaintiffs in support of their application for the initial appointment of the Receiver and nothing has changed except the proverbial "shoe is on the foot" Plaintiffs' other [Exhibit A, Motion]. 16. As plaintiffs themselves put it when they sought to continue the Receiver after the first Appeal, "the circumstances have not changed in any way since the Appellate Division held that a preliminary injunction and temporary receivership are necessary, such that the Appellate here" Division's findings [on the Receivership] are the law of the case and binding [Exhibit A, Crain Affirmation in Support, at ¶ 12]. (A0548783,1) 3 of 5 FILED: SARATOGA COUNTY CLERK 07/14/2021 03:25 PM INDEX NO. 20162946 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 07/14/2021 17, Simply put, to continue the receivership will "maintain the status quo while the parties [continue to] litigate a complicated family dispute, and will conserve the resources of both parties" the Court and the [Exhibit A, Crain Affirmation in Support, at ¶ 17]. 18, "The receivership has allowed the parties to navigate [various] dispute[s] without role" the need for judicial intervention, due largely in part to Mr. Harper's authoritative [Exhibit A, Crain Affirmation in Support, at ¶ 14]. 19. As plaintiffs put it when they were seeking an injunction and the receivership, "[d]estruction and material alterations to real property, during the pendency of a dispute regarding law" ownership, constitute irreparable harm as a matter of [Exhibit A, Crain Affirmation in Support, at ¶ 143], 20. Aside from this, the Receiver has collected substantial rent over the pendency of this action and those funds should not be released to plaintifu until the issues are conclusively resolved in their favor after resolution of the post-trial motions and, if necessary, the appeal. 21, Indeed, even has of the filing of this motion plaintiffs and Duo have already k;;G;vi;;g.'v circumvented the Receiver and personally collected rent from the Duo property in direct violation of the current Receivership order [Exhibit B, Emails]. 22, In this respect on July 8, Duo requested that the Receiver advise as to whom they should pay the July rent, In no uncertain terms, Duo was advised that the rent was to be paid to the Receiver pursuant to the stillapplicable order [Exhibit B]. 23. Despite this, Duo and Iris Lu arranged for her to take the rent directly, They did so despite knowing that the issue had been presented to this Honorable Court and the order was still applicable. {A0548783.1} 4 of 5 FILED: SARATOGA COUNTY CLERK 07/14/2021 03:25 PM INDEX NO. 20162946 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 07/14/2021 24. Simply put, circumstances such as this demonstrate the need for a continued receivership. There is simply no chance of good faith absent the receivership and, as argued in the memorandum of law, defendants would be irreparably harmed if the receivership were to be discontinued. 25. In there is a significant likelihood that the verdict will be overturned post- short, by trial motion and/or appeal and defendants would be irreparably harmed if the receivership is terminated. Conclusion WHEREFORE, defendants respectfully request that this Honorable Court: (1) GRANT an order continuing the imposition of the Receivership pending resolution of the Post-Trial Motion and, if necessary, the Appeal from the Judgment; and (2) GRANT such other and further relief as itdeems just proper. Dated: July 14, 2021 Albany, New York Yours, etc., PHELAN, PHELAN & DANEK, LLP By. TIMOTHY S. BRENNAN Attorneys for Defendants WEN YING GAMBA, YUEN HSIANG LU and WEN FU LU 300 Great Oaks Blvd., Suite 315 Albany, New York 12203 (518) 640-6900 (AOS48783.1) 5 of 5