Preview
FILED: KINGS COUNTY CLERK 02/25/2019 07:14 PM INDEX NO. 519788/2018
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 02/25/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
BOARD OF MANAGERS OF THE CITY VIEW
CONDOMINIUM, AS AGENT FOR THE UNIT
OWNERS
Plaintiff,
- against - Index No.: 519788/2018
VAL-HUGH CAPITAL CORP. and MICHELLE
MCHUGH as Executrix for THE ESTATE OF MICHAEL
MCHUGH,
Defendants.
PLAINTIFF BOARD OF MANAGERS OF THE CITY VIEW CONDOMINIUM, AS
OWNERS'
AGENT FOR THE UNIT MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT MICHELLE MCHUGH AS EXECUTRIC FOR
THE ESTATE OF MICHAEL MCHUGH'S MOTION TO DISMISS
Dated: February 25, 2019
Yonkers, New York
Spolzino Smith
Buss&Jacobstte
733 Yonkers Avenue, Suite 200
Yonkers, New York 10704
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Plaintiff BOARD OF MANAGERS OF THE CITY VIEW CONDOMINIUM, AS AGENT
FOR THE UNIT OWNERS (the "Board"), by and through its attorneys, Spolzino Smith Buss &
Jacobs, LLP, respectfully submit the following memorandum of law in opposition to plaintiff
Michelle McHugh, as Executrix for the Estate of Michael McHugh's (the "Estate") motion to dismiss
the complaint as against the Estate (the "Motion").
STATEMENT OF FACTS
The relevant facts are set forth in the verified complaint (NYSCEF Doc. No. 2) (the
"Complaint") as well as in the accompanying Affidavit of Mary Ann Chiulli, sworn to February 25,
2019 ("Chiulli Affidavit"), and Affirmation of Charles S. Welcome, Esq., dated February 25, 2019
(the "Welcome Affirmation"). Capitalized terms used but not defined herein shall have the meaning
ascribed to them in the Welcome Affirmation.
ARGUMENT
The Complaint is manifestly sufficient to state causes of action against the Estate for breach
of fiduciary duty, common law fraud, negligent misrepresentation, breach of warranty and violations
of New York's consumer protection statute, GBL Sections 349 and 350. The Estate's Motion must
fail for a number of reasons. First, the Estate's reliance on affidavits to allege facts contrary or
additional to those alleged in the Complaint is improper, and any such facts alleged in the supporting
affidavits should all be disregarded by the Court. Second, the Estate's Motion relies on
misinterpretations of the relevant New York law. The Board's factual allegations in support of its
fraud and misrepresentations easily meet the applicable standard for specificity. It is indisputable that
the Martin Act does not preempt causes of action for common law fraud or negligent
misrepresentation based on misrepresentations of present fact contained within an offering plan. The
Board's fraud and misrepresentation claims cannot be duplicative of its breach of contract claim, and,
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in any event, are sufficiently extraneous to any contract which the Estate alleges to exist. Similarly,
the Second Department recognizes causes of action under GLB §§349 and 350 in connection with
condominium sales. Third, the Estate's argument as to the breach of fiduciary duty cause of action
relies on misapprehensions of the facts alleged in the Complaint as well as improper factual
allegations in the Estate's supporting affidavits that must be disregarded. The Complaint alleges
sufficient facts to state a cause of action for breach of fiduciary pursuant to controlling second
department law. Finally, the Estate failed to submit documentary evidence that utterly refutes the
Board's factual allegations and conclusively establishes a defense to the Board's breach of warranty
cause of action. Moreover, the Estate failed to even address the alleged breach of implied warranty.
L STANDARD OF REVIEW
"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal
construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord
plaintiffs the benefit of every possible favorable inference, and determine only whether the facts
theory."
as alleged fit within any cognizable legal Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994).
Moreover, "a court may freely consider affidavits submitted by the plaintiff to remedy any defects
complaint."
in the Id at 88.
Where a defendant seeks to dismiss a complaint pursuant to CPLR § 3211(a)(1), "a
dismissal is warranted only if the documentary evidence submitted conclusively establishes a
law."
defense to the asserted claims as a matter of ki at 88. The documentary evidence relied on
allegations."
in a motion to dismiss must "utterly refute the plaintiff's factual Board of Managers
of Marke Gardens Condominium v. 240/242 Franklin Ave.. LLC, 71 A.D.3d 935, 936 (2d Dep't
2010). It is well-settled that affidavits submitted by a defendant in support of a motion to dismiss
are not documentary evidence and, to the extent that the affidavits purport to contradict or
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supplement the facts alleged in the complaint, they should not be given any consideration by the
Court. Fontanetta v. Doe, 73 A.D.3d 78, 85 (2d Dep't 2010) ("affidavits are not documentary
evidence").
CPLR § 3016(b) provides that "Where a cause of action...is based upon misrepresentation,
fraud, mistake, willful default, breach of trust or undue influence, the circumstances constituting
detail."
the wrong shall be stated in New York courts have interpreted this section to require the
allegations to be sufficiently specific "so as to inform the defendant of the alleged wrongful
conduct and give notice of the allegations the plaintiff intends to prove. This pleading requirement
should not be confused with unassailable proof of fraud, and may be met when the facts are
conduct."
sufficient to permit a reasonable inference of the alleged McDonnell v. Bradley, 109
A.D.3d 592, 593 (2d Dep't 2013) (internal quotation marks and citations omitted).
II. THE BOARD PROPERLY PLEADED FRAUD AND MISREPRESENTATION
a. The Board's Causes of Action for Fraud and Negligent Misrepresentation
were Pleaded with Specificity
The Board alleges in great detail the numerous discrepancies between the statements made
by the Estate and the reality of the construction of the Condominium. S_ee Complaint ¶¶ 26-30.
The Board further alleges that the Estate at all relevant times controlled the Sponsor and oversaw
the construction of the Condominium, and that the Estate controlled the Board from inception in
or around 2012 until March 2017, and as such had specialized knowledge of the construction and
knew or should have known that the statements the Estate swore to were materially false and
misleading. S_ee Complaint ¶¶ 6, 11, 22, 23, 33-34, 39-41. The Board also alleges that the Estate
was aware that purchasers of units would rely on the false statements about the construction of the
Condominium in making their decisions to purchase, and that as a direct result of their reliance on
the Estate's false statements, they have been damaged. See, e.g., Complaint ¶¶ 42-46. These
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allegations are more than sufficient to satisfy New York's pleading requirements. The Motion
should be denied because the Board pleaded the Estate's fraud and misrepresentation with
specificity.
b. The Martin Act Does Not Preempt the Board's Causes of Action
New York courts, including controlling precedent from the Second Department, have
unequivocally held that common law fraud claims, other than those based solely on omissions in
filings required by the Martin Act, are not preempted by the Martin Act. The Estate erroneously
asserts that the Board cannot maintain a fraud claim because a_1111
fraud claims relating to the
Offering Plan are preempted by the Martin Act. Estate Mem. At 11-12.
In fact, New York consistently recognizes the right of private parties to bring common law
fraud claims in addition to and concurrently with actions brought by the Attorney General under
the Martin Act. See, e.ga CPC Intern. Inc. v. McKesson Coro., 70 N.Y.2d 268, 275, 284-86 (1987)
(refusing to dismiss common-law fraud claims even after finding "there is no implied private cause
of action for violations of the antifraud provisions of the Martin Act"); Caboara v. Babylon Cove
Development, LLC, 54 A.D.3d 79 (2d Dep't 2008) ("Here, nothing in the clear import of the
language of the Martin Act requires a conclusion that the Legislature intended to abrogate any
common-law remedy arising from conduct prohibited under the act. Nor are the remedies afforded
plaintiffs'
the Attorney General made exclusive by the Martin Act. Thus, the common-law fraud
and breach of contract causes of action were neither abrogated nor supplanted by the Martin Act");
Newswalk Condominium v. Pacific. LLC, 102 A.D.3d 932, 934 (2d Dep't 2013) ("Here, Cetera
failed to demonstrate that the causes of action asserted against him rest "entirely on alleged
omissions from filings required by the Martin Act and the Attorney General's implementing
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regulations"); Board of Managers of Caton Court Condominium v. Caton Development LP, 41
Misc.3d 1231(A), 2013 WL 6182944, at *5-6, 9 (Sup. Ct. Kings Co. 2013) (same).
The Martin Act merely preempts common law fraud claims based solely on omissions
where "but for the Martin Act and the Attorney General's implementing regulations...the
disclosures."
[defendant] did not have [a duty] to make the Kerusa Co. LLC v. W10Z/515 Real
Estate Ltd. Partnership, 12 N.Y.3d 236, 245 (2009). Where, as here, the Estate affirmatively and
intentionally made misrepresentations of present facts with the intent to deceive potential unit
purchasers and for those potential purchasers to rely on the Estate's affirmative misrepresentations,
the Board has stated a cause of action for common law fraud separate and apart from the Attorney
General's ability to bring an action against the Estate pursuant to the Martin Act.
Even where there is no underlying duty to make representations, once a party does make
an affirmative representation of present fact, there is a duty to not intentionally misrepresent the
present fact. See Caboara v. Babylon Cove Development, LLC, 82 A.D.3d 1141, 1142 (2d Dep't
2011); Board of Managers of Marke Gardens Condominium v. 240/242 Franklin Ave.. LLC, 71
A.D.3d 935 (2d Dep't 2010) (affirmative misrepresentations in offering plan and other materials
were sufficient for common law fraud cause of action separate and distinct from Martin Act).
Here, the Board has alleged common law fraud that is not abrogated or supplanted by the
Martin Act. The Board alleges that the Estate made fraudulent misrepresentations with the intent
that purchasers rely on the misrepresentations to purchase units in the Condominium. Such
allegations are not "entirely [] alleged omissions from filings required by the Martin Act and the
regulations,"
Attorney General's implementing so the Court should deny the Estate's Motion.
c. Fraud and Misrepresentation Cannot Be Duplicative of Breach of Contract
Absent a Contract
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The Board's fraud and misrepresentation claims are not duplicative. The Board has not
alleged a breach of contract cause of action against the Estate, and thus cannot make a
"duplicative"
fraud or misrepresentation claim against the Estate. The Estate wants to have its cake
and eat it too: On one hand it argues that there is no contract between the Board and the Estate,
and on the other hand it argues that the Board's fraud and misrepresentation claims are "classic
claim[s]."
breach of contract Estate Mem. At 11.
The Estate cannot have it both ways. See, e.g., LIUS Groun Intern. Endwell. LLC v. HF_S
Intern., Inc., 92 A.D.3d 918, 927 (2d Dep't 2012) ("The plaintiff alleged that Zhang made
misrepresentations to induce it to enter into the contact with HFS. Since Zhang was not a party to
the contract...the fraud allegations, insofar as asserted against Zhang, were not duplicative of the
breach of contract allegations"); Sellinger Enterorises. Inc. v. Cassuto, 50 A.D.3d 766, 768 (2d
(1st
Dep't 2008) (same); Allenby. LLC v. Credit Suisse. AG, 134 A.D.3d 577, 581 Dep't 2015)
("Since the fraud claim is asserted against all three defendants but a contract claim is asserted
against only CS-CIB, the fraud claim cannot be duplicative as to Credit Suisse Securities and
Funding"
Credit Suisse Loan (emphasis in original)); Lenox Hill Hoso. v. American Intern. Groua
I_nc_., 31 Misc.3d 1243(A), 932 N.Y.S.2d 761 (Table), 2011 WL 2449026, at *8 (Sup. Ct. N.Y. Co.
2011) (granting leave to amend complaint to include fraud claim against defendant dismissed from
breach of contract claim). Here, the Board did not bring a breach of contract claim against the
Estate because the contract was with the Sponsor. The Estate cannot both deny the existence of a
contract and assert that the fraud claim is duplicative of a breach of contract.
d. The Board Properly Stated Causes of Action for Fraud and Negligent
Misrepresentation
Even if the Court were to find that the Board's fraud claim against the Estate could in
theory be duplicative of the Board's breach of contract claim against the Sponsor, the Board has
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sufficiently alleged a separate cause of action for fraudulent inducement. To state a claim for
fraudulent inducement, "there must be a knowing misrepresentation of material present fact, which
injury."
is intended to deceive another party and induce that party to act on it, resulting in GoSmile
(1st
Inc. v. Levine, 81 A.D.3d 77, 81 Dep't 2010).
The fraud and misrepresentation alleged by the Board does not sound in breach of contract,
as the misrepresentations made by the Estate were not "an allegedly insincere promise to perform
contract,"
the as the Estate claims, but rather were misstatements of present fact made the Estate
by
in a willful scheme to defraud putative purchasers of units. New York University v. Continental
Ins. Co., 87 N.Y.2d 308, 318 (1995). Because the Board alleges that the misrepresentations by the
Estate were misrepresentations of present fact, rather than misrepresentations of future intent, the
fraud and misrepresentation claims are not duplicative. Wyle Inc. v. ITT Corp., 130 A.D. 438, 439
(13t
Dep't 2015) ("In the context of a contract case, the pleadings must allege misrepresentations
of present fact, not merely misrepresentations of future intent to perform under the contract, in
order to present a viable claim that is not duplicative of a breach of contract claim").
Indeed, the misrepresentations alleged in the Complaint are similar in nature to those that
the Second Department has upheld as the basis for fraud claims even where there is a separate
breach of contract claim. Fresh Direct. LLC v. Blue Martini Software, Inc., 7 A.D.3d 487, 489 (2d
Dep't 2004) ("the plaintiff adequately pleaded a cause of action based on fraud by alleging that
the defendant made false representations regarding the manufacture of its software and the manner
in which the software performed...and that these false representations induced the plaintiff to enter
into the contract"). Here, the Estate made false representations regarding the manufacture of the
Building and the manner in which the Building performed (e.g. that it would not leak or that the
lobby would be properly heated), which induced the individual unit owners into entering into the
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Purchase Agreements. These allegations, which must be accepted as true, are manifestly sufficient
to survive a motion to dismiss.
Likewise, the negligent misrepresentation claims are properly pleaded for the same
reasons. S_ee Kimmell v. Schaefer, 89 N.Y.2d 257, 264 (1996) ("The record indicates that the
Embarcadero projections were generated for the express purpose of providing investors with
current information about potential returns on the project"). Here, the Estate made
misrepresentations of present facts about the construction to potential purchasers.
To state a claim for negligent misrepresentation, a plaintiff must allege facts sufficient to
demonstrate the following elements: "(1) the existence of a special or privity-like relationship
imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the
information."
information was incorrect; and (3) reasonable reliance on the J.A.O. Acquisition
Corp. v. Stavitsky, 8 N.Y.3d
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Ruling
FISCUS vs. PATTERSON, et al.
Jul 10, 2024 |
CVCV22-0199210
FISCUS VS. PATTERSON, ET AL.
Case Number: CVCV22-0199210
Tentative Ruling on Motion to Continue Trial Date: This matter involves multiple parties and Cross-
Complaints. Plaintiff is Paula Fiscus. Defendant/Cross-Defendants/Cross-Complainants Gregory G. Gonzales
and Marcia J. Gonzales, Trustees of the Greg and Marcia Gonzales Family 2014 Revocable Trust will be referred
to as the Gonzales Defendants. James Patterson and Patterson Landscape/Yard Manicurist Agency will be
referred to as the Patterson Defendants. The Gonzales Defendants have filed a Motion to Continue the presently
set August 20, 2024, trial date. The Patterson Defendants have joined the motion. Plaintiff has opposed the
motion. Defendant American Contractors Indemnity Company has not filed anything related to the motion and
did not attend the ex parte hearing on June 27, 2024, at which time was shortened to hear the motion today instead
of July 22, 2024, as originally noticed. There is no evidence that the Gonzales Defendants provided notice of
today’s hearing to Defendant American Contractors Indemnity Company. Cross-Defendant Mark Behnke
Construction has also not filed anything related to the motion but did attend the ex parte hearing and is therefore
aware of today’s hearing.
Merits. “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and
their counsel must regard the date set for trial as certain.” CRC 3.1332(a). “Although continuances of trials are
disfavored, each request for a continuance must be considered on its own merits. The court may grant a
continuance only on an affirmative showing of good cause requiring the continuance.” CRC 3.1332(c).
Circumstances that may indicate good cause are:
(1) The unavailability of an essential lay or expert witness because of death, illness, or other
excusable circumstances;
(2) The unavailability of a party because of death, illness, or other excusable circumstances;
(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
(4) The substitution of trial counsel, but only where there is an affirmative showing that the
substitution is required in the interests of justice;
(5) The addition of a new party if:
(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial;
or
(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for
trial in regard to the new party's involvement in the case;
(6) A party's excused inability to obtain essential testimony, documents, or other material evidence
despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which the case is not
ready for trial.
CRC 3.1332(c).
When considering whether to grant a motion to continue, there are several factors that the Court must consider
including:
(1) The proximity of the trial date;
(2) Whether there was any previous continuance, extension of time, or delay of trial due to any
party;
(3) The length of the continuance requested;
(4) The availability of alternative means to address the problem that gave rise to the motion or
application for a continuance;
(5) The prejudice that parties or witnesses will suffer as a result of the continuance;
(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the
need for a continuance outweighs the need to avoid delay;
(7) The court's calendar and the impact of granting a continuance on other pending trials;
(8) Whether trial counsel is engaged in another trial;
(9) Whether all parties have stipulated to a continuance;
(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or
by imposing conditions on the continuance; and
(11) Any other fact or circumstance relevant to the fair determination of the motion or application.
CRC 3.1332(d).
The reasons presented by the Gonzales Defendants to continue the trial are that trial counsel has a conflicting trial
schedule and because Marcia Gonzales’s son is getting married the week of trial. In the moving papers, the
Gonzales Defendants note that the wedding date was set prior to the Court setting the Augst 20, 2024 trial date.
The reasons for the Patterson Defendants joining the motion are because counsel has a conflicting trial schedule,
counsel is moving homes in late August, and because the Pattersons have a prepaid vacation from August 26-
September 6, 2024. It is not clear whether the Pattersons’ vacation was set and prepaid when the Court set the
trial date of if the Pattersons planned it after the trial date was set. Plaintiff opposes the continuance on the grounds
that Defendants have failed to show good cause for the continuance, and because Plaintiff will be prejudiced by
a continuance. The prejudice alleged is that a later trial would not allow time for necessary remediation of the
landscaping issues before the next rainy reason. These issues have resulted in significant erosion and flooding.
Plaintiff also argues that the parties stipulated to the August 20, 2024, trial date and all agreed that no further
continuances would be granted absent stipulation. While this agreement did not make it into the Court’s Order
dated April 10, 2024 (which was submitted by the Patterson Defendants), it is clear from the Stipulation that the
parties did reach such a stipulation.
Conflicting trial schedules do not automatically create good cause to continue a trial. Trial counsel regularly have
multiple trials set for the same week. Any attorney who practices in civil law is well aware that not every trial set
actually goes forward as scheduled. No good cause has been presented in that regard. As to the wedding, it
appears the counsel for the Gonzales Defendants did not check with their client prior to agreeing to a trial date.
Had they checked, surely Ms. Gonzales would have pointed out that her son was getting married that week. The
unavailability of Ms. Gonzales due to her son’s wedding may constitute an excusable circumstance under CRC
3.1332(c)(2). Similarly, the Patterson’s vacation could also be such a circumstance, depending on when it was
scheduled.
Regarding the CRC 3.1332(d) factors, the trial date is one month and twelve days away. Trial has been continued
twice before. The first was by stipulation on October 13, 2022. The second was by stipulation on April 9, 2024,
as discussed above. The Gonzales Defendants have requested a continuance to November of 2024 while the
Patterson Defendants have requested 45-60 days. The only alternative means to address the problem that gave
rise to the motion or application for a continuance would be potentially taking witnesses out of order at trial.
Plaintiff may be prejudiced by the continuance. The matter is not entitled to preferential trial setting. Regarding
the Court’s calendar, one of the two civil trial courts will be dark on the currently set date of August 20, 2024,
which reduces the chance that this matter will be assigned to a courtroom for trial. Counsel is not currently
engaged in another trial that causes a conflict and only provides evidence that there are other trials that might
affect counsel’s availability. There is no stipulation for a continuance. The parties previously agreed that no
further continuances would occur absent a stipulation.
Regarding the interests of justice, the Court is in a position of having to weigh how much counsel’s failure to
consult with their clients regarding their schedules should be permitted to affect their client on a personal level.
It is clear that counsel should have done a better job to make sure that the agreed upon trial date worked for all
parties, and not just counsel. This is particularly so when the parties explicitly stipulated that no further
continuances would take place. However, the Court does not feel that it is in the interest of justice to punish Ms.
Gonzales by potentially preventing her from participating in her son’s wedding based on counsel’s failure to
communicate properly. As to the Patterson vacation, it is unclear whether this vacation was set at the time the
trial was set or if the Pattersons scheduled their vacation later. However, the Court does understand the need for
the Pattersons to be present for the trial to present their testimony.
On balance, the Court finds that granting of a short continuance would be in the interest of justice. The Pattersons’
vacation lasts until September 6, 2024. Therefore, the Court intends to continue the trial to Tuesday, September
10, 2024. If this trial date does not work for Plaintiff, the Court will entertain the first available date for Plaintiff.
Should the trial be continued, all discovery deadlines will flow from the new trial date.
However, the Court notes that Defendant American Contractors Indemnity Company was not provided with
notice of today’s hearing. Absent an appearance by Defendant American Contractors Indemnity Company, the
Court will continue today’s hearing to July 22, 2024, at 8:30 a.m. in Department 63 as that is the date that was
originally noticed.
Ruling
TOYOTA INDUSTRIES COMMERCIAL FINANCE INC. VS AIR BOY EXPRESS, INC., A CALIFORNIA CORPORATION, ET AL.
Jul 09, 2024 |
22STCV17241
Case Number:
22STCV17241
Hearing Date:
July 9, 2024
Dept:
71
Superior Court of California
County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
TOYOTA INDUSTRIES COMMERCIAL FINANCE INC.,
vs.
AIR BOY EXPRESS, INC., et al.
Case No.:
22STCV17241
Hearing Date:
July 9, 2024
Plaintiff Toyota Industries Commercial Finance, Inc.s
unopposed
motion to amend the judgment entered on August 25, 2023, is granted.
Plaintiff Toyota Industries Commercial Finance, Inc. (Toyota) (Plaintiff) moves
unopposed
for this Court to amend the judgment in this matter entered on August 25, 2023, against Defendants
Kil H Choi aka Kil Han Choi
and
Air Boy Express, Inc.
(collectively Defendants) to remove the name of Air Boy Express, Inc., erroneously included in the Judgment as a Plaintiff on line 5.
(Notice of Motion, pg. 1; C.C.P. §473(d).)
Background
On August 25, 2023, the court granted Plaintiffs default judgment against Defendants.
Plaintiff filed multiple default judgment packets to the Court, which necessitated this Courts line edit to include
the name of Air Boy Express, Inc.
on the judgment listing Kil H Choi aka Kil Han Choi according to the one judgment rule.
However, this Court erroneously entered the name of Air Boy Express, Inc. as a Plaintiff instead of as a Defendant.
Plaintiff filed the instant motion on March 13, 2024.
As of the date of this hearing no opposition has been filed.
Motion to Amend Judgment
Legal Standard
Once a judgment is entered, trial courts lose jurisdiction to set aside or amend the judgment except in accordance with statutory procedures.
(
APRI
Insurance Co. v. Superior Court
(1999) 76 Cal.App.4th 176, 182;
Rochin v. Pat
Johnson Manufacturing Co.
(1998) 67 Cal.App.4th 1228, 1238).
However, [t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. (C.C.P. §473(d).)
Discussion
Plaintiffs motion to amend the clerical error in the judgment to remove the name of
Air Boy Express, Inc.
from line 5 as a Plaintiff and include the name of
Air Boy Express, Inc.
as a Defendant is granted.
Here, the Court made an error by placing the name of
Air Boy Express, Inc.
on the Judgment in the wrong location.
Accordingly, Plaintiffs
unopposed
motion is granted.
Conclusion
Plaintiffs
unopposed
motion to amend the judgment to remove the clerical error listing Defendant
Air Boy Express, Inc. as a Plaintiff and add the name Air Boy Express, Inc. as a Defendant
is granted.
Moving Party to give notice.
Dated:
July _____, 2024
Hon. Daniel M. Crowley
Judge of the Superior Court
Ruling
DONALD L. CRAWFORD SR. VS VERIZON COMMUNICATIONS, INC., ET AL.
Jul 10, 2024 |
24TRCV01439
Case Number:
24TRCV01439
Hearing Date:
July 10, 2024
Dept:
B
Superior Court of
California
County
of Los Angeles
Southwest District
Torrance Dept. B
DONALD L. CRAWFORD SR.,
Plaintiff,
Case No.:
24TRCV01439
vs.
RULING
VERIZON COMMUNICATIONS, INC., et al.,
Defendant.
Hearing Date:
July 10, 2024
Moving Parties:
Defendant Cellco Partnership dba Verizon Wireless (joinder by Walmart Inc.)
Responding Party:
Plaintiff Donald L. Crawford Sr.
Motion to Compel Arbitration
The Court considered the moving papers and joinder, late-filed opposition, and reply papers that was filed before the late-filed opposition.
RULING
The motion is GRANTED and the case is STAYED.
Request for judicial notice by Defendant Cellco Partnership is DENIED.
BACKGROUND
On August 30, 2024, plaintiff Donald L. Crawford Sr. (self-represented) filed a complaint against defendants Verizon Communications, Inc., Walmart, Inc., and Samsung Electronics of America, Inc. for breach of contract, products liability, and intentional tort.
LEGAL AUTHORITY
Under CCP § 1281, a written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and revocable, save upon such grounds as exist for the revocation of any contract.
Under CCP § 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: . . .
(b) Grounds exist for rescission of the agreement. . . .
[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable.
Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.
If the party opposing the petition raises a defense to enforcementeither fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see §1281.2(a), (b))that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.
Rosenthal v. Great Western Fin. Securities Corp.
(1996) 14 Cal. 4th 394, 413.
Petitions to compel arbitration are summary proceedings in which the court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence.
Engalla v. Permanente Medical Group, Inc.
(1997) 15 Cal. 4th 951, 972.
Unlike a ruling on a motion for summary judgment, the Court is charged with resolving any factually disputed issues unless there is no evidentiary support for the claims of the party opposing the petition.
Id.
at 973.
DISCUSSION
Defendant Cellco Parnership dba Verizon Wireless (erroneously sued as Verizon Communications, Inc.) requests an order compelling plaintiff to binding arbitration and to stay the proceeding.
Defendant Walmart Inc. filed a joinder.
In the complaint, plaintiff alleges that on March 15, 2024, plaintiff and defendant Verizon entered into a written contract.
Plaintiff transferred his cell phone from Consumer Cellular to Verizon and received a supposedly new Samsung A-15 phone for signing up for the service.
The monthly service charge was $65 to be deducted from plaintiffs checking account.
Verizon billed plaintiff $287 the first month.
The phone was not brand new.
It was refurbished from a prior defect.
The service was to come with complete customer service.
The phone began to malfunction almost immediately.
Voicemail could not be set up; the phone jumped to mute or airplane mode without plaintiffs knowledge; and it would shut down for hours citing overheating.
It took hours and sometimes days before the phone would come back online.
Verizon techs could not fix it and recommended a replacement device.
Plaintiff has stilnot received the replacement phone.
Plaintiff suffered damages because he had no working phone and was forced to purchase a Tracphone with a different phone number.
Plaintiffs business line is disabled as well.
Plaintiff was forced to go to a third carrier, Metro PCS by T Mobile.
Plaintiff paid for service beginning April 20, 2024, but cannot use the service because Verizon locked the network despite warning from the FCC to release the line to Metro.
Existence of an agreement to arbitrate
As stated in
Cione v. Foresters Equity Services, Inc.
(1997) 58 Cal. App. 4th 625, 634 The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract.
There is no public policy favoring arbitration of disputes that the parties have not agreed to arbitrate.
Lopez v. Charles Schwab & Co., Inc.
(2004) 118 Cal. App. 4th 1224, 1229.
Defendant Verizon Wireless argues that plaintiff agreed to resolve this dispute with Verizon Wireless through binding arbitration.
Defendant explains that on March 15, 2024, plaintiff opened a Verizon Wireless cellular service account for a mobile phone number ending in -8792.
In connection with opening the account, plaintiff executed a Service Summary.
Joseph Ninete decl., Exh. A.
The Service Summary, which references the Verizon Wireless Customer Agreement, states, in part in bold:
I agree to the VZW Customer Agreement (CA), including settlement of disputes by arbitration instead of jury trial, as well as the terms of the plan and optional services I have chosen.
I am aware that I can view the CA anytime at verizonwireless.com.
It also states on another page:
I have read and agree to the Verizon Customer agreement (CA) including settlement of dispute by arbitration instead of a jury trial . . . .
Defendant further contends that plaintiff executed an Installment Loan Agreement/Security Agreement (Payment Agreement) with Verizon Wireless for the purchase of a Galaxy A15.
Ninete decl., Exh. B.
The Payment Agreement incorporates the Customer Agreement by reference, including its arbitration provision.
The Payment Agreement also states:
Additionally, any disputes under this device payment agreement (including, without limitation, any disputes against the Seller and/or Verizon Wireless) shall be resolved in accordance with the dispute resolution provisions in your Customer Service Agreement . . . which terms are incorporated by reference.
Specifically, you and Verizon Wireless (and/or the Seller) both agree to resolve all disputes under this device payment agreement only by arbitration . . . .
The Customer Agreement states in part, in bold capitalized letters, You and Verizon both agree to resolve disputes only by arbitration. . . .
Ninete decl., Exh. C.
In the joinder, defendant Walmart argues that as discussed in length in the moving papers, plaintiffs signed contractual agreement with Verizon Wireless mandates that this claim be resolved in arbitration, and that the agreement clearly states that the seller (in this case Walmart) is equally entitled to arbitration of the agreement and for the state court action to be stayed while arbitration proceeds.
See Ninete decl., Exh. B at page 2 (Specifically, you and Verizon Wireless (and/or the Seller) both agree to resolve all disputes under this device payment agreement only by arbitration . . . .).
In a late-filed opposition, plaintiff contends that no contract exists between plaintiff and defendants because the documents are false, inaccurate, fraudulent in that said documents have [been] altered and/or photoshopped to appear that plaintiff executed the attached false and fraudulent contract.
He does acknowledge finger signing at the store.
The Court finds that defendants have met their burden of proving the existence of an arbitration agreement and that there is no evidence that the above agreements are false, inaccurate, fraudulent.
Scope
Defendants contend that the arbitration provision in the Customer Agreement is broadly worded (Any dispute that in any way relates to or arises out of this Agreement . . . .) and covers plaintiffs claims.
The Court agrees.
Enforceability
Defendant argues that the validity and enforceability of the arbitration provision in the Customer Agreement must be decided by the arbitrator, not the Court, because the arbitration provision contains an express delegation clause.
To be enforceable, the delegation clause itself must be clear and unmistakable, and not revocable under state contract defenses such as fraud, duress, or unconscionability.
Tiri v. Luck Chances, Inc.
(2014) 226 Cal. App. 4
th
231, 242.
See also
B.D. v. Blizzard Ent., Inc.
(2022) 76 Cal. App. 5
th
931, 957 (arbitration agreement clearly and unmistakably delegates question of arbitration to arbitrator by statement that the arbitration has authority to decide all issues of arbitrability).
The Court finds that the delegation clause is clear and unmistakable.
Plaintiff does not address the delegation clause or dispute it in the opposition.
The motion is GRANTED as to the claims against defendants Cellco Partnership dba Verizon Wireless and Walmart Inc.
.
ORDER
The motion is GRANTED.
The claims asserted against defendants Cellco Partnership dba Verizon Wireless and Walmart Inc are ordered to arbitration.
The case is STAYED.
Moving defendant is ordered to give notice of this ruling.
Ruling
JOHNSON, ET AL VS. PARENT, ETAL
Jul 10, 2024 |
CVCV21-0197618
JOHNSON, ET AL VS. PARENT, ETAL
Case Number: CVCV21-0197618
This matter is on calendar for review regarding status of arbitration. The Court ordered this matter to arbitration
on February 5, 2024. Neither side appeared for the prior hearing on May 3, 2024. The Court notes that
Substitutions of Attorney have been filed on behalf of Plaintiffs. An appearance is necessary on today’s
calendar to discuss the status of arbitration.
Ruling
Omar Arroyo et al. vs American Honda Motor Co., Inc., a California Corporation
Jul 09, 2024 |
STK-CV-UBC-2022-0007718
2022-7718 Mercado/Arroyo MTC Deposition of PMQ 7/10/2024 Plaintiffs Rocio Mercado and Omar Arroyo bring a Motion to Compel Deposition Attendance of Defendant’s Person Most Knowledgeable (“PMK”) and Request for Sanctions. Having read the moving papers, the opposition papers, and reply papers the court issues the following tentative ruling: On February 8, 2024, Plaintiffs properly noticed the deposition of Defendants PMK and Custodians of Records. On February 15, 2024, Plaintiffs followed up with Defendant regarding Plaintiffs’ Notice of Depositions and requested that deposition dates be provided in case Defendant’s PMK was not available on the date the deposition was scheduled. On March 2, 2024, Defendant served objections to Plaintiffs’ Notice of Deposition. On March 8, 2024, Plaintiffs’ counsel sent a meet and confer letter to defense counsel regarding defendant’s objections. In the transmittal email plaintiffs’ counsel states “WE are in receipt of your objections to the notice of deposition for AHMAC’s PMQ set for Monday, March 11, 2024 at 11:30 A.M.; however, no alternative dates were provided for the deponent. [¶] Please advise as to an alternative, mutually convenient date so we may be able to re-notice this PMQ depo accordingly. IN addition, please see the attached M&C Letter regarding categories of examination.” On March 11, 2024, at 10:47 A.M., plaintiffs’ counsel sent another email to Defense counsel. This email provided the ZOOM link for the scheduled 11:30 A.M. deposition and also the following language, “Again, if the notice date does not work for Honda or the deponent, please advise on alternate dates. [¶] In the event that your office does not provide alternative dates for t his deposition, to protect our clients’ rights we will proceed with the deposition to memorialize your failure to appear.” Neither Defense counsel nor the party deponent appeared at the properly notice deposition and a non-appearance was taken by plaintiffs’ counsel. At 5:51 P.M. on March 11, 2024, plaintiffs’ counsel sent defense counsel an email attempting to get deposition dates to obtain the deposition without court intervention. On March 15, 2024, Plaintiffs’ counsel again sought dates to obtain the deposition. On March 27, 2024, Plaintiffs’ counsel again sent an email in an attempt to get dates to take the deposition. Finally on March 27, 2024 Defense counsel responded to plaintiffs’ counsel’s inquiry. However, defense counsel did not provide dates for the deposition. Rather defense counsel stated, “We have requested availability for a PMQ to be provided as soon as possible, and will notify you as soon as a date is received.” On April 2, 2024, plaintiffs’ counsel again inquired about deposition dates. As of the time the motion was filed, Defense counsel has failed to provide available deposition dates. Trial of this matter is set for August 19, 2024, 1:30 P.M., Dept. 11B. Oral depositions are an authorized method of discovery. (See CCP §2025.010 et seq.) Serving a deposition notice on a party is the method to obtain the party’s attendance at the oral deposition. (CCP §§2025.210-2025.240 / 2025.280.) If a party fails to attend the deposition as noticed the noticing party may bring a motion to compel attendance. If the party fails to attend or proceed with the noticed deposition the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party, or the attorney for that party, or both, and in favor any party attending in person or by attorney, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP §2025.430.) In addition, failure to submit to authorized method of discovery is a misuse of the discovery process for which monetary sanctions shall be imposed. (CCP §2023.2023.010(d) /§ 2023.030.) The Motion is GRANTED. Defendant’s PMK is ordered to sit for an oral deposition within 15 days of service of the order on Defense counsel. Defendant is to produce responsive documents at the deposition. The parties are to meet and confer to find an agreeable date, time and location for the deposition within the 15 day window. The request for monetary sanctions is granted. The court finds the hourly rate requested for associate work of $295.00, is reasonable. The court finds the hourly rate requested for Mr. Kirnos of $495.00 is reasonable. The court finds it would take approximately 3 hours of associate time and 2 hours of Mr. Kirnos time write the motion, analyze the opposition, draft a reply and attend the hearing remotely. The court finds that the monetary sanction should include the $60.00 filing fee. Therefore, the court awards $1,935.00 as discovery sanctions against Defendant and Defense counsel. Discovery sanctions payable within 30 days of service of the order. The Mandatory Settlement Conference date of July 22, 2024, 1:30 P.M., Dept. 11B, and Trial Date of August 19, 2024, 1:30 P.M., Dept. 11B, are confirmed and remain as set. WATERS 7/9/2024 Directions for Contesting or Arguing the Tentative Ruling: Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear remotely no later than 4:00 PM on the day before the scheduled hearing. The Department, Case number, Case Name, and party’s name must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. To conduct a remote appearance, follow the instructions below. There is a dedicated conference bridge lines for Dept. 11B. Call into dedicated conference bridge line at the time set for the hearing. To attend the remote hearing in Dept. 11B: Call into (209) 992-5590, then follow the prompts and use the Bridge # 6941 and Pin # 5564. The courtroom clerk will make announcements and the Judge will call the calendar. Please mute your phones when you are not speaking, and remember to unmute your phone when you are speaking. At this time, we are not able to provide information over the phone. To communicate with the Courtroom Clerk of Dept. 11B, please email questions to civilcourtclerks@sjcourts.org, indicating in the title of the email the Department, Case number, Case Name, and party’s name. A Courtroom Clerk will return your email. To ensure the Court has your most recent contact information, if you have not already done so, please register your email address and mobile number on the Court’s website under Online Services, Attorney Registration. (You do not have to be an attorney to register.) We thank you for your cooperation, assistance, patience and flexibility.
Ruling
MAYS vs ENNIS
Jul 11, 2024 |
CVRI2306229
MOTION TO FILE A CROSS-
CVRI2306229 MAYS VS ENNIS
COMPLAINT
Tentative Ruling:
GRANT
Cross-Complaint to be filed and served within 5 days.
Ruling
JOHN P BERNARD VS. BMW OF NORTH AMERICA, LLC ET AL
Jul 10, 2024 |
CGC23608339
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 8. PLAINTIFF JOHN BERNARD's Motion For Award Of Attorneys Fees, Costs, And Expenses. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. In meantime, counsel shall meet and confer to resolve their differences. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
JOHN P. MIDDLETON, ET AL. VS ROY LEE, ET AL.
Jul 12, 2024 |
19STCV30580
Case Number:
19STCV30580
Hearing Date:
July 12, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 12, 2024
Case Name:
Middleton, et al. v. Lee, et al.
Case No.:
19STCV30580
Matter:
Motion to be Relieved as Counsel
Moving Party:
Marc Rohatiner, counsel for Plaintiffs John P. Middleton and The John
Powers Middleton Companies, LLC
Responding Party:
Unopposed
Notice:
OK
Ruling:
The Motion is granted.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly
encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Marc Rohatiner seeks to be relieved as counsel for Plaintiffs John P. Middleton and The John Powers Middleton Companies, LLC.
The Motion is granted because it meets all requirements of Cal. Rules of Court, Rule 3.1362.
Moving party to give notice.
Attorney is relieved as counsel of record for client effective upon the filing of the proof of service for the Court order (form MC-053) upon the client.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Document
Eulogia Septimo v. Vivid Mortgages Inc.,, Tikva Hope Sekezi,, My Home Advisors, Llc.,, Orin Kraiem,, 525 Chester Street, Llc., Yossi Yaacov, A/K/A Joseph Jacobs,, First Capital Homes Corp.,, Kobi Rannan,, Rock E. Small Plumbing And Heating, Inc.,, Erroll Small,, Akeeb B. Shekoni,, Ravi Construction, and, Askon Architects, P.C.,, Expediting Services, Inc., and, Terreance E. Dougherty, Esq.
Jun 11, 2019 |
Heela Capell
|
Commercial - Contract |
Commercial - Contract |
517987/2022
Preview
FILED: KINGS COUNTY CLERK 02/25/2019 07:14 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 02/25/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS BOARD OF MANAGERS OF THE CITY VIEW CONDOMINIUM, AS AGENT FOR THE UNIT OWNERS Plaintiff, - against - Index No.: 519788/2018 VAL-HUGH CAPITAL CORP. and MICHELLE MCHUGH as Executrix for THE ESTATE OF MICHAEL MCHUGH, Defendants. PLAINTIFF BOARD OF MANAGERS OF THE CITY VIEW CONDOMINIUM, AS OWNERS' AGENT FOR THE UNIT MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT MICHELLE MCHUGH AS EXECUTRIC FOR THE ESTATE OF MICHAEL MCHUGH'S MOTION TO DISMISS Dated: February 25, 2019 Yonkers, New York Spolzino Smith Buss&Jacobstte 733 Yonkers Avenue, Suite 200 Yonkers, New York 10704 1 of 16 FILED: KINGS COUNTY CLERK 02/25/2019 07:14 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 02/25/2019 Plaintiff BOARD OF MANAGERS OF THE CITY VIEW CONDOMINIUM, AS AGENT FOR THE UNIT OWNERS (the "Board"), by and through its attorneys, Spolzino Smith Buss & Jacobs, LLP, respectfully submit the following memorandum of law in opposition to plaintiff Michelle McHugh, as Executrix for the Estate of Michael McHugh's (the "Estate") motion to dismiss the complaint as against the Estate (the "Motion"). STATEMENT OF FACTS The relevant facts are set forth in the verified complaint (NYSCEF Doc. No. 2) (the "Complaint") as well as in the accompanying Affidavit of Mary Ann Chiulli, sworn to February 25, 2019 ("Chiulli Affidavit"), and Affirmation of Charles S. Welcome, Esq., dated February 25, 2019 (the "Welcome Affirmation"). Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Welcome Affirmation. ARGUMENT The Complaint is manifestly sufficient to state causes of action against the Estate for breach of fiduciary duty, common law fraud, negligent misrepresentation, breach of warranty and violations of New York's consumer protection statute, GBL Sections 349 and 350. The Estate's Motion must fail for a number of reasons. First, the Estate's reliance on affidavits to allege facts contrary or additional to those alleged in the Complaint is improper, and any such facts alleged in the supporting affidavits should all be disregarded by the Court. Second, the Estate's Motion relies on misinterpretations of the relevant New York law. The Board's factual allegations in support of its fraud and misrepresentations easily meet the applicable standard for specificity. It is indisputable that the Martin Act does not preempt causes of action for common law fraud or negligent misrepresentation based on misrepresentations of present fact contained within an offering plan. The Board's fraud and misrepresentation claims cannot be duplicative of its breach of contract claim, and, 1 2 of 16 FILED: KINGS COUNTY CLERK 02/25/2019 07:14 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 02/25/2019 in any event, are sufficiently extraneous to any contract which the Estate alleges to exist. Similarly, the Second Department recognizes causes of action under GLB §§349 and 350 in connection with condominium sales. Third, the Estate's argument as to the breach of fiduciary duty cause of action relies on misapprehensions of the facts alleged in the Complaint as well as improper factual allegations in the Estate's supporting affidavits that must be disregarded. The Complaint alleges sufficient facts to state a cause of action for breach of fiduciary pursuant to controlling second department law. Finally, the Estate failed to submit documentary evidence that utterly refutes the Board's factual allegations and conclusively establishes a defense to the Board's breach of warranty cause of action. Moreover, the Estate failed to even address the alleged breach of implied warranty. L STANDARD OF REVIEW "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts theory." as alleged fit within any cognizable legal Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994). Moreover, "a court may freely consider affidavits submitted by the plaintiff to remedy any defects complaint." in the Id at 88. Where a defendant seeks to dismiss a complaint pursuant to CPLR § 3211(a)(1), "a dismissal is warranted only if the documentary evidence submitted conclusively establishes a law." defense to the asserted claims as a matter of ki at 88. The documentary evidence relied on allegations." in a motion to dismiss must "utterly refute the plaintiff's factual Board of Managers of Marke Gardens Condominium v. 240/242 Franklin Ave.. LLC, 71 A.D.3d 935, 936 (2d Dep't 2010). It is well-settled that affidavits submitted by a defendant in support of a motion to dismiss are not documentary evidence and, to the extent that the affidavits purport to contradict or 2 3 of 16 FILED: KINGS COUNTY CLERK 02/25/2019 07:14 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 02/25/2019 supplement the facts alleged in the complaint, they should not be given any consideration by the Court. Fontanetta v. Doe, 73 A.D.3d 78, 85 (2d Dep't 2010) ("affidavits are not documentary evidence"). CPLR § 3016(b) provides that "Where a cause of action...is based upon misrepresentation, fraud, mistake, willful default, breach of trust or undue influence, the circumstances constituting detail." the wrong shall be stated in New York courts have interpreted this section to require the allegations to be sufficiently specific "so as to inform the defendant of the alleged wrongful conduct and give notice of the allegations the plaintiff intends to prove. This pleading requirement should not be confused with unassailable proof of fraud, and may be met when the facts are conduct." sufficient to permit a reasonable inference of the alleged McDonnell v. Bradley, 109 A.D.3d 592, 593 (2d Dep't 2013) (internal quotation marks and citations omitted). II. THE BOARD PROPERLY PLEADED FRAUD AND MISREPRESENTATION a. The Board's Causes of Action for Fraud and Negligent Misrepresentation were Pleaded with Specificity The Board alleges in great detail the numerous discrepancies between the statements made by the Estate and the reality of the construction of the Condominium. S_ee Complaint ¶¶ 26-30. The Board further alleges that the Estate at all relevant times controlled the Sponsor and oversaw the construction of the Condominium, and that the Estate controlled the Board from inception in or around 2012 until March 2017, and as such had specialized knowledge of the construction and knew or should have known that the statements the Estate swore to were materially false and misleading. S_ee Complaint ¶¶ 6, 11, 22, 23, 33-34, 39-41. The Board also alleges that the Estate was aware that purchasers of units would rely on the false statements about the construction of the Condominium in making their decisions to purchase, and that as a direct result of their reliance on the Estate's false statements, they have been damaged. See, e.g., Complaint ¶¶ 42-46. These 3 4 of 16 FILED: KINGS COUNTY CLERK 02/25/2019 07:14 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 02/25/2019 allegations are more than sufficient to satisfy New York's pleading requirements. The Motion should be denied because the Board pleaded the Estate's fraud and misrepresentation with specificity. b. The Martin Act Does Not Preempt the Board's Causes of Action New York courts, including controlling precedent from the Second Department, have unequivocally held that common law fraud claims, other than those based solely on omissions in filings required by the Martin Act, are not preempted by the Martin Act. The Estate erroneously asserts that the Board cannot maintain a fraud claim because a_1111 fraud claims relating to the Offering Plan are preempted by the Martin Act. Estate Mem. At 11-12. In fact, New York consistently recognizes the right of private parties to bring common law fraud claims in addition to and concurrently with actions brought by the Attorney General under the Martin Act. See, e.ga CPC Intern. Inc. v. McKesson Coro., 70 N.Y.2d 268, 275, 284-86 (1987) (refusing to dismiss common-law fraud claims even after finding "there is no implied private cause of action for violations of the antifraud provisions of the Martin Act"); Caboara v. Babylon Cove Development, LLC, 54 A.D.3d 79 (2d Dep't 2008) ("Here, nothing in the clear import of the language of the Martin Act requires a conclusion that the Legislature intended to abrogate any common-law remedy arising from conduct prohibited under the act. Nor are the remedies afforded plaintiffs' the Attorney General made exclusive by the Martin Act. Thus, the common-law fraud and breach of contract causes of action were neither abrogated nor supplanted by the Martin Act"); Newswalk Condominium v. Pacific. LLC, 102 A.D.3d 932, 934 (2d Dep't 2013) ("Here, Cetera failed to demonstrate that the causes of action asserted against him rest "entirely on alleged omissions from filings required by the Martin Act and the Attorney General's implementing 4 5 of 16 FILED: KINGS COUNTY CLERK 02/25/2019 07:14 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 02/25/2019 regulations"); Board of Managers of Caton Court Condominium v. Caton Development LP, 41 Misc.3d 1231(A), 2013 WL 6182944, at *5-6, 9 (Sup. Ct. Kings Co. 2013) (same). The Martin Act merely preempts common law fraud claims based solely on omissions where "but for the Martin Act and the Attorney General's implementing regulations...the disclosures." [defendant] did not have [a duty] to make the Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. Partnership, 12 N.Y.3d 236, 245 (2009). Where, as here, the Estate affirmatively and intentionally made misrepresentations of present facts with the intent to deceive potential unit purchasers and for those potential purchasers to rely on the Estate's affirmative misrepresentations, the Board has stated a cause of action for common law fraud separate and apart from the Attorney General's ability to bring an action against the Estate pursuant to the Martin Act. Even where there is no underlying duty to make representations, once a party does make an affirmative representation of present fact, there is a duty to not intentionally misrepresent the present fact. See Caboara v. Babylon Cove Development, LLC, 82 A.D.3d 1141, 1142 (2d Dep't 2011); Board of Managers of Marke Gardens Condominium v. 240/242 Franklin Ave.. LLC, 71 A.D.3d 935 (2d Dep't 2010) (affirmative misrepresentations in offering plan and other materials were sufficient for common law fraud cause of action separate and distinct from Martin Act). Here, the Board has alleged common law fraud that is not abrogated or supplanted by the Martin Act. The Board alleges that the Estate made fraudulent misrepresentations with the intent that purchasers rely on the misrepresentations to purchase units in the Condominium. Such allegations are not "entirely [] alleged omissions from filings required by the Martin Act and the regulations," Attorney General's implementing so the Court should deny the Estate's Motion. c. Fraud and Misrepresentation Cannot Be Duplicative of Breach of Contract Absent a Contract 5 6 of 16 FILED: KINGS COUNTY CLERK 02/25/2019 07:14 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 02/25/2019 The Board's fraud and misrepresentation claims are not duplicative. The Board has not alleged a breach of contract cause of action against the Estate, and thus cannot make a "duplicative" fraud or misrepresentation claim against the Estate. The Estate wants to have its cake and eat it too: On one hand it argues that there is no contract between the Board and the Estate, and on the other hand it argues that the Board's fraud and misrepresentation claims are "classic claim[s]." breach of contract Estate Mem. At 11. The Estate cannot have it both ways. See, e.g., LIUS Groun Intern. Endwell. LLC v. HF_S Intern., Inc., 92 A.D.3d 918, 927 (2d Dep't 2012) ("The plaintiff alleged that Zhang made misrepresentations to induce it to enter into the contact with HFS. Since Zhang was not a party to the contract...the fraud allegations, insofar as asserted against Zhang, were not duplicative of the breach of contract allegations"); Sellinger Enterorises. Inc. v. Cassuto, 50 A.D.3d 766, 768 (2d (1st Dep't 2008) (same); Allenby. LLC v. Credit Suisse. AG, 134 A.D.3d 577, 581 Dep't 2015) ("Since the fraud claim is asserted against all three defendants but a contract claim is asserted against only CS-CIB, the fraud claim cannot be duplicative as to Credit Suisse Securities and Funding" Credit Suisse Loan (emphasis in original)); Lenox Hill Hoso. v. American Intern. Groua I_nc_., 31 Misc.3d 1243(A), 932 N.Y.S.2d 761 (Table), 2011 WL 2449026, at *8 (Sup. Ct. N.Y. Co. 2011) (granting leave to amend complaint to include fraud claim against defendant dismissed from breach of contract claim). Here, the Board did not bring a breach of contract claim against the Estate because the contract was with the Sponsor. The Estate cannot both deny the existence of a contract and assert that the fraud claim is duplicative of a breach of contract. d. The Board Properly Stated Causes of Action for Fraud and Negligent Misrepresentation Even if the Court were to find that the Board's fraud claim against the Estate could in theory be duplicative of the Board's breach of contract claim against the Sponsor, the Board has 6 7 of 16 FILED: KINGS COUNTY CLERK 02/25/2019 07:14 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 02/25/2019 sufficiently alleged a separate cause of action for fraudulent inducement. To state a claim for fraudulent inducement, "there must be a knowing misrepresentation of material present fact, which injury." is intended to deceive another party and induce that party to act on it, resulting in GoSmile (1st Inc. v. Levine, 81 A.D.3d 77, 81 Dep't 2010). The fraud and misrepresentation alleged by the Board does not sound in breach of contract, as the misrepresentations made by the Estate were not "an allegedly insincere promise to perform contract," the as the Estate claims, but rather were misstatements of present fact made the Estate by in a willful scheme to defraud putative purchasers of units. New York University v. Continental Ins. Co., 87 N.Y.2d 308, 318 (1995). Because the Board alleges that the misrepresentations by the Estate were misrepresentations of present fact, rather than misrepresentations of future intent, the fraud and misrepresentation claims are not duplicative. Wyle Inc. v. ITT Corp., 130 A.D. 438, 439 (13t Dep't 2015) ("In the context of a contract case, the pleadings must allege misrepresentations of present fact, not merely misrepresentations of future intent to perform under the contract, in order to present a viable claim that is not duplicative of a breach of contract claim"). Indeed, the misrepresentations alleged in the Complaint are similar in nature to those that the Second Department has upheld as the basis for fraud claims even where there is a separate breach of contract claim. Fresh Direct. LLC v. Blue Martini Software, Inc., 7 A.D.3d 487, 489 (2d Dep't 2004) ("the plaintiff adequately pleaded a cause of action based on fraud by alleging that the defendant made false representations regarding the manufacture of its software and the manner in which the software performed...and that these false representations induced the plaintiff to enter into the contract"). Here, the Estate made false representations regarding the manufacture of the Building and the manner in which the Building performed (e.g. that it would not leak or that the lobby would be properly heated), which induced the individual unit owners into entering into the 7 8 of 16 FILED: KINGS COUNTY CLERK 02/25/2019 07:14 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 02/25/2019 Purchase Agreements. These allegations, which must be accepted as true, are manifestly sufficient to survive a motion to dismiss. Likewise, the negligent misrepresentation claims are properly pleaded for the same reasons. S_ee Kimmell v. Schaefer, 89 N.Y.2d 257, 264 (1996) ("The record indicates that the Embarcadero projections were generated for the express purpose of providing investors with current information about potential returns on the project"). Here, the Estate made misrepresentations of present facts about the construction to potential purchasers. To state a claim for negligent misrepresentation, a plaintiff must allege facts sufficient to demonstrate the following elements: "(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information." information was incorrect; and (3) reasonable reliance on the J.A.O. Acquisition Corp. v. Stavitsky, 8 N.Y.3d