Preview
FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS Part 45
________________ .-----------X
: Index No. 110703/2011
BLDG ABI ENTERPRISES, LLC, :
: Hon. Joel M. Cohen, J.S.C.
Plaintiff, :
: CIVIL ACTION
-against- :
711 SECOND AVE CORP. and :
IAN CHENG, AS GUARANTOR, :
: This isan action converted to
Defendants; an NYSCEF action.
:
711 SECOND AVE CORP. and :
IAN CHENG, AS GUARANTOR, : Premises:
: "711 Second Avenue
York"
Defendants-Counterclaiiñañts, : County, City and State of New
: (alleged in A:ncñded Cemphint)
BLDG ABI ENTERPRISES, LLC, :
:
Countcrclaim Defêñdañt. :
x
DEFENDANTS'
PRE-TRIAL MEMORANDUM OF LAW
PLUS PARTIAL APPENDIX
Respectfully submitted by:
Michael R. Curran
Attorney for Defendants
98-120 Queens Boulevard, Suite #1-C
Rego Park, New York 11374-4414
(718) 830-0246, ext. 127 (tel.)
(718) 830-7741 (tel.)
mrc4law@yahoo.com
TO: Mr. Robert Marace, Esq.
Attorney for Plaintiff
ViaNYSCEF service
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TABLE of CONTENTS
Page No.
Table of Contents . .. . .
. . . .
. .. .. .. . ... . ... .. .. .. .. .. .. . ... .. .. .. . .. ... i
Table of Authorities .... . .... . ..... .. . ... . ................ . .. ... . .... . iv
Preliminary Statement. . .. . .. .
. .. .. .. . ... .. .. .. .. .. .. .. .. . ... .. .. .. .. .. . 1
Procedural History............... ... . ... . ... . ... .......... . .. ... . ... .. 3
Statement of Facts. . ... .. .. . ... .. .. .. .. .. .. .......... . .. ... .. .. .. .. .. . 4
The February 23, 2010 Lockout . .. ... .. .......... . .... . .. ... . .. ... 6
Argument. . .. .. .. . ... .. . ... .. .. ... .. . ... .. .. .. .. .. .. .. . ... .. . ... .. . 6
Point I
Res Judicata and Plaintiff's Blatant Fraud
in Civil Court Are Bars to this Action 6
Point II
The Civil Court Action Was Defective, Subject to
Dismissal and Is a Separate Bar to This Action 9
Point III
The Lockout Cut Off Any Rent Claims
Together with Plaintiff Re-Letting the Premises 10
Point IV
Plaintiff Possibly Had Privity of Contract,
But Not Privity of Estate with Defeñdañ‡s 11
Conclusion. . .. .. .. ............... . ................... . .. .. .. .. .. .. .. 13
Appendix .. . ... ............................... . .. .. .. .. .... . .. .. .. .. 14
06/17/2010 Marshal's Legal Possession Notice (upon execution of warrant). . .. .. . Dal
02/14/2019 Order to Show Cause to Vacate Judgment in LT-60290-10/NY . .. .. .. . Da2
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02/10/2019 Affidavit of Ian Cheng in Support . .. .. .. .. .. .. ... .. . . .
. .. . Da4
02/13/2019 Affirmation in Support . . .
. .. . ... . ........... . .. .. .. .. .. . Dal2
Exhibit A: Judgment of -0- Warrant of Eviction Da20
Possession, Money Judgment,
Exhibit B: 03/19/2010 Notice of Petition and Petition, Affidavits of Service Da23
Exhibit C: 05/22/2013 Amended Complaint (from Moraco) NYSCEF Doc 11 Da40
Exhibit D: 10/19/2018 Notice to Admit (unserved, unsigned) NYSCEF Doc 3 Da46
Exhibit E: April 2010-May 2010 sworn documents to obtain default, warrant Da51
Exhibit F: 05/11/2012 Decision & Order (Mills, J.) NYSCEF Doc 14,
(page 8 of D&O is missing as filed by plaintiff above) . .. . .
. . . .
. . . Da59
Exhibit G: 09/01/2019 Lease and Guaranty (as reformed) . .. . .
. .. .. . ... . Da70
Lease . .. .. .. .. .. .. . ... . ... .. .. .. .. .. .. .. .. .. ... .. .. .. .. . Da71
Notices, Paragraph 70 . .. .. . .
. .. ... ............ . .. .. .. . .
. . . Da87
Guaranty . .. .. .. .. .. .. .. . ... .. .. .. .. .. .. .. .. .. . .
. .. .. .. .. Da90
Exhibit H: 01/21/2010 Plan Disapproved; 02/23/2010 Lockout Evidence . .. . Da92
OSC Blueback . .. .... . . ... . .. ... . .
. .. .. . .. . .... . .. .. .. .. .. . .
. . .. Da96
12/31/1998 & 09/01/2000 Deeds indicating premises ownership . .. .. ... . .. . .
. . . N/A
380¹
ACRIS page for 241 East Street, 193 LLC, Block 0919, Lot 0025 . . ... .. .. .. . Da97
380'
ACRIS page for 243 East Street, Eden Roc Hotel Ltd, Block 0919, Lot 0027 . .. .. Da98
ACRIS page for 711 Second Avenue, Eden Roc Hotel Ltd, Block 0919, Lot 0028 . .. . Da99
12/31/1998 Deed to Eden Roc Hotel Ltd for Block 0919, Lots 0025, 0027, 0028 Da100
09/01/2000 Deed to 193 LLC allegedly for Block 0919, Lot 0025, but also allegedly
380'
for 241-43 East Street and 711 Second Avenue, New York, New York Da108
01/09/2015 Dissolution of 711 Second Avenue Inc. (a/k/a 711 Second Ave Corp.) Dal 16
02/14/2019 Notice to Admit Propounded by Defendants NYSCEF Doc 39. . .. .. . Dal 18
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02/14/2019 Proof of Service of Notice to Admit above . . ... ...... . .. .. .. ... . Dal31
02/11/2019 Amended Responses to Plaintiff's Notice to Admit (req. Court leave)
NYSCEF Doc. 37 . . .
. . . .
.............. . .. .. .. ...... . ... . .. ... . . Dal32
02/11/2019 Proof of Service of Responses above . .. .. .. .. .. .. .. .. .. . .. .
. . .. Dal36
ruling"
01/17/2019 Plaintiff request for "advance on Notice to Admit (unserved)
NYSCEF Does. 23-24 . .. . ... . ... .. .. .. .. .. .......... . .. . ... ... . . Dal37
01/17/2019 Proof of NO service Does. 23-24 . .. .... .. .. .. .. ..... . .. .. .. . ... . Dal40
10/19/2018 Proof of NO service Does. 3-4 (unlabeled, unsigned, unserved) . .. .. . Da141
09/18/2018 Consent to E-Filing, ultimately filed 09/28/2018 as NYSCEF Doc. 2,
signed by non-e-filer Lawrence Wolf, Esq. (stillnot an e-filer) . .. .. . .
. . . . Dal42
09/28/2018 Confirmation of E-Filing of the above, but not copied to anyone . ... . Da143
09/24/2018 E-Mail from Robert Moraco, indicating he took to County Clerk . .. .. Dal 44
09/26/2018 E-Mail indicating that my e-mail was garbled (not blaming anyone) Dal45
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Table of Authorities
Federal Cases Page No(s).
Hillside Metro Associates, LLC v. JP Morgan Chase Bank. National
Association, 747 F.3d 44 (2d Cir. 2014) . .. . ... .. .. .. .. ... .. 12
Court of Appeals
Barash v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77, 82-83,
308 N.Y.S.2d 649 (1970) . .. .. ... . ........... . . .
. .. .. .. .. .. . 11, Dal9
Chinatown Apartments, Inc. v. Chu Cho Lam, 51 N.Y.2d 786, 433 N.Y.S.2d
89 (1980) . ... .. .. .. .. . .. .. .. ................. . ... .. .. . ... Dal5
Holy Properties Limited. LP v. Kenneth Cole Productions, Inc.,
87 N.Y.2d 130 (1995)... . .. ... .. .............. . .. ... .. .. . 10
Matter of Josey v. Goord, 9 N.Y.3d 386, 2007 NY Slip Op. 09963 (2007) 9
Appellate Division
APF 286 Mad LLC v. Chittur and Associates P.C., 132 A.D.3d 610,
(1st
20 N.Y.S.3d 4 Dept. 2015) .. . ... .. .. ..... . .. .. . .
. .. .. . 8 n.4
Berkeley Assocs. Co. v. DiNolfi, 122 A.D.2d 703, 705, 505 N.Y.S.2d 630
(1st
Dept. 1986). . .. .. .. .......... . .. .. .. .. .. .. .. .. ... .. .. . 10, Dal7
Caracaus v. Conifer Central Square Associates, 158 A.D.3d 63, 69,
N.Y.S.3d 225 (4thDept.2017).............................. 7
Centre Great Neck. LLC v. Rite Aid Corporation, 292 A.D.2d 484, 485,
739 N.Y.S.2d 420, 421 (2d Dept. 2002) . .. .. .. .. .. .. .. .. .. ... . 11
Clarke v. Wallace Oil Corp., 284 A.D.2d 492, 727 N.Y.S.2d 139
(2d Dept. 2001) . .. .. .. .. .. .. .. .. ... .. .. .. .. .. .. .. .. .. .. .. 10, Dal7
Hendrikson v. Lexington Oil Co.. Inc., 41 A.D.2d 672, 672-73, 340 N.Y.S.2d
963, 965 (2d Dept. 1973) . .. .. .. . ... .. ...... . .. . .. .
. .. .. .. .. Dal6
Marburt Holding Corp. v. Picto Corp., 5 A.D.2d 617, 173 N.Y.S.2d 762
(1st
Dept.1958)), app. eranted, 6 A.D.2d 791, 175 N.Y.S.2d 582
(1st
Dept. 1958) . .. .. .. ............ . . ... .. .. .. ... .. .. .. .. . 7-8, Dai7
MSG Pomp Corp. v. Jane Doe, 185 A.D.2d 798, 799-800, 586 N.Y.S.2d 965
(ISt
Dept. 1992) . .. . ... .. .... . .. .. .. .......... . .. .. .. .. ... 10, Dal7
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Appellate Term
Alex Armonas Development Corp. v. Wottowa, N.Y.L.J., 2/21/97, p. 34
9th th
col. 4 (App. Term, Jud.Dists.) . . .
. . .. .. ... .. .. .. .. . Dal5
9th th
Brophy v. Winter, N.Y.L.J., 3/22/96, p. 30, col. 4 (App. Term,
Jud.Dists.) . ... . .. . .. .
. . ... .. . ... .. .. .. .. .. .. .. .. . ... .. . Dal5
475 Madison Ave. Coro. v. J. Epstein & Co.. Inc.. N.Y.L.J. 6/30/97, p. 30
1"
col. 5 (App. Term, Dept.) . ... .. .. .. .. .. .. .. .. .. .. .. .. . 11, Dal9
Horatio Arms, Inc. v. Celbert, 42 Misc.3d 11, 972 N.Y.S.2d 813,
1"
2013 WL 3942914 at *1 (App. Term, Dept. 2013) . .. .. ... .. . Dal6
Park Property Development v. Santos, 1 Misc.3d 16, 767 N.Y.S.2d 558,
11th
2003 NY Slip Op. (2d & ud.DiStS.)..................... 8
Pelliccia v. Variety Petroluem Corp., N.Y.L.J., 7/9/96, p. 29, col. 6 (App.
9th
Term, thJud.DiStS.)............................... 8, Dal7
Stojanoski v. Tonick Enterprises. Ltd., N.Y.L.J., 4/9/96, p. 33, col. 4 (App.
11th
Term, 2d & ud.Dists.) . ... .. .. ............. . . .
. . ... .. 8, Dal7
Trial Courts
BLDG ABI Enterprises, LLC v. 711 Second Ave. Corp. et al.,Index No.
LT-60290-10/NY (NY City Civil Court, New York County) . .. .. . 2, Da02 et seq.
Citibank v. Amadeo, N.Y.L.J., 11/16/94, p. 26, col. 1 (NY City Civil
Court, Kings County) . .. .. ... .. .. ............. . .. .. ... .. .. 10, Dal7
City of New York v. Mortel, 156 Misc.2d 305, 592 N.Y.S.2d 912 (NY City
Civil Court, Kings County, 1992) ..................... . .. .. .. 10
Goldman Bros. v. Forester, 62 Misc.2d 812, 309 N.Y.S.2d 694 (NY City
Civil Court, New York County, 1970) . . .
. .. .. . .. .. .. .. ... .. . 10
Papacostopulos v. Morrelli, 122 Misc.2d 938, 472 N.Y.S.2d 284 (NY City
Civil Court, Kings County, 1984) ............... . .. ... .. . ... 10, Dal7
Robles v. Margaritis, 52 Misc.3d 523, 29 N.Y.S.3d 780, 2016 NY Slip
Op. 26131 (District Court, Nassau County, 2016)........... . .. 13
11201 7th
200 West Street HDFC v. 1842 Avenue Delicatessen Coro.,
30 Misc.3d 1216(A), 958 N.Y.S.2d 649, 2011 WL 294287,
2011 NY Slip Op. 50101(U) (Civil Court, New York County) . .. . Dal6
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201-209East33'dStreetAssoc.v.Luciano,N.Y.L.J.,12/6/95,p.33,col.2
(CivilCourt,NewYorkCounty)........................... 10,Dal7
VillageofWoodridgev.Proyect,18Misc.2d623,189N.Y.S.2d258
CountyCourt,SullivanCounty,1959)..................... 10,Dal8
Statutes
CPLR3211(a)(2),(8).......................................... Dal5
CPLR5015(a)(1),(3),(4).. . ......................... . ........... Da02,Da14
RPAPLArticle7............................................... Dal5
RPAPL711(2)................................................ Dal5
RPAPL735................................................... Dal5,Dal6
RPAPL735(1)(a),(b)............................................ Dal5
RPAPL741(3)................................................. 10,Dal7
RPAPL853................................................... 10,Dal9
Treatisesa
14Carmody-Wait,NewYorkPractice................................. Dal8
38C.J.S.,Guaranty,p.1130.......................................... 8,Dal7
38AC.J.S.,Guaranty§2(2019ThomsonReuters) ....................... 8
DanielFinkelstein&LucasA.Ferrara,LANDLORD ANDTENANTPRACTICE IN
NEWYORK§14:303(2002ThomsonWest&2004Supp.).......... Dal9
IN.Y.JUR.2DActions§45(2019ThomsonReuters).................... 7
90N.Y.JUR. 2DRealProperty-PossessoryActions§183
(2019ThomsonReuters).............................. ....... 9
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PRELIMINARY STATEMENT
On February 23, 2019-tomorrow-the plaintiff will have locked defendants out of 711
Second Avenue, New York, New York exactly nine years ago on February 23, 2010. (Da92). This
action, commenced in or about September 2011, see Plaintiff's Pre-Trial Memorandum of Law
("Pl. Memo") at page 4, is now about 7.5 years old. But what, in essence, is this case about?
As stated below, the case is supposedly a suit brought on the alleged personal guaranty of
Ian Cheng ("Cheng"), guaranteeing performance of the alleged September 1, 2009 lease between
BLDG ABI Enterprises, LLC and 711 Second Avenue Inc., the latter of which is erroneously set
forth in the lease with the name 711 Second Ave Corp. (Da71) (lease), (Da90) (limited guaranty).
While plaintiff claims itis currently suing the corporate defendant as well as Cheng, the corporate
defendant was dissolved during the four (4) years when this case remained dormant, as defendants
believed plaintiff had abandoned the case in 2014. (Dal l6). Plaintiff alleges that corporate
lease"
defendant "breached the and Mr. Cheng is therefore liable on the guaranty for rent and other
claims. (Da40). Defendants claim because: (1) they were locked out, (2) plaintiff had three
months'
security in its possession at lockout; and (3) plaintiff used fraud to obtain a judgment of
possession, there is no liability, but plaintiff may be liable for damages. In addition, it isargued
that this matter is barred by the fraud and res judicata due to the Civil Court summary proceeding.
Trial is set at this point for March 8, 2019 by Order of Hon. Joel M. Cohen, J.S.C. At the
pre-trial conference in September 2018, the parties agreed that the matter, originally a hardcopy,
non-NYSCEF case, would be converted to an NYSCEF case. A stipulation was signed by the
undersigned, an NYSCEF participant, and Mr. Lawrence Wolf, Esq., a non-NYSCEF participant,
(Da142).1
as Mr. Wolf is the attorney of record. Upon execution of the Stipulation, Mr. Robert
1Mr. Wolf remains a non-NYSCEF filerto date. Mr. Robert Moraco, Esq. of Livoti, Bernstein & Moraco,
P.C. isappearing of counsel forMr. Wolf. No Notice of Appearance or Consent to Change Attorneys has
1
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Moraco, Esq., of counsel to Mr. Wolf had the Court so-order the Stipulation. (Da144). Mr.
Moraco then submitted the Stipulation to the County Clerk, but apparently the e-mail address of
the undersigned had been mistyped. (mer4law@yahoo.com not mrc4law@ yahoo_.con) (Da145).
(At the time, the undersigned was preparing to leave the county for Ireland and may not have seen
the Mr. Moraco's e-mail.) When the NYSCEF filing was set up, at firstno confirmations were
received by either side. (Dal43). This led to later confusion for defendants, as the undersigned,
while having this case tracked on eTrack since 2016, received no confirmations or service of any
documents from 09/28/2018 until 01/30/2019, when the undersigned filed a Notice of Appearance
to cure the anomaly. See NYSCEF Doc. 25. Counsel had believed that the case had stalled again
and that the 02/06/2019 trial date would be a status conference, as this happened several times.
The result was a 02/01/2019 adjournment request, which the Court granted reluctantly.
Opposing counsel claimed that the original record would be entered in the NYSCEF, upon
conversion. Instead, what has happened, is a mere two pages of minutes appear on the NYSCEF
system that indicate the underlying record is devoid of motion papers or ancillary records of any
kind. NYSCEF #110703/2011 Doc. 2 (two pages, no real record). Review of the record in the
New York County Clerk revealed the entire record is there: two large files of allthe documents,
including the appellate appendix from the 2014 appeal (which contains the record through 2014).
As a result, objection was made to plaintiff's attempt to submit court exhibits that were not taken
from the original record. Itappears that plaintiff has been preparing the case since October 2018.
Be that as all the above may, defendants are attempting to comply with the Court's Order
that trial occur on March 8, 2019. In the interim, defendants have also filed and served a
02/14/2019 Order to Show Cause in the underlying L&T case, BLDG ABI Enterprises, LLC v.
been filed,so it appears Mr. Wolf isstill
primary counsel. Mr. Wolf isan officer of the plaintiff.Defendants
conditioned consent to e-filingto the parties complying with 22 NYCRR § 202.5-b(b)(2) et seq. (Dal 42).
2
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711 Second Ave Coro. Ian Cheng, LT-60290-10/NY, in the Civil Court, in which plaintiff sued
both the corporate and individual defendants as tenants, obtaining a default judgment based in
fraud, on May 24, 2010, returnable 02/26/2019 (Da02) et seq., (Da20) (judgment).
Procedural History
Prior to this case, and unbeknownst to defendants, who were never served in accordance
with the lease with either a notice of cure, rent demand or court papers, there was a default
judgment of possession, but no money judgment, in the Civil Court case cited above. See (Dal)
(execution of warrant 06/17/2010) and (Da2) (order to show cause to vacate default/dismiss).
In the following year, plaintiff commenced this case. Pl. Memo at 4. Except for some
2013"
erroneous dates (e.g., counsel states the first decision of Justice Mills was dated "May 11,
"Pleadings" History"
instead of "05/11/12"), defendants generally agree with the and "Procedural
4-6.2
sections of plaintiff's memorandum as to facts only. Pl. Memo at
From the Fall of 2014 to mid-2016, nothing happened on the case, and, theoretically it
3
could have been dismissed for neglect to prosecute In 2016, Hon. David Cohen, J.S.C. who had
apparently ended up with the case, issued an Order, requiring a mandatory appearance on
06/10/2016, upon pain of dismissal. Only defendants appeared. Apparently, Mr. Wolf contacted
the Court and, at the appearance, Justice Cohen recused himself on account of Mr. Wolf. Thus,
due to this recusal, and in spite of the failure to appear, the case was not dismissed on 06/10/2016.
2There are some quality control issues, in the form of a few erroneous dates fairlyeasy to spot. One issue
isthat Justice Mills's 05/11/12 Decision & Order submitted by plaintiff as a court exhibit is missing page
8 of said decision. See (Da59), (Da67) (missing page); see also NYSCEF Doc. 14 (as filed). As stated
above, objection was made to plaintiff's exhibits as not being derived from record in the County Clerk.
3
In late 2014-early 2015, the undersigned was exposed to some kind of toxin and became 95% blind in the
lefteye, 65% blind inthe right, requiring surgeries in 2015 to restore sight. During this period many of the
records for this case were placed in storage and have not yet been located.
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The case again remained dormant, until a conference was abruptly called by Justice Robert
Reed in mid-2017. At this conference, Mr. Moraco appeared (who could also have appeared in
2016), and requested leave to file a Note of Issue, which was granted. The anomalous Note of
Issue was then filed by Mr. Wolf-not Mr. Moraco-that contains numerous irregularities. The
record shows the Note of Issue was filed. NYSCEF Doc. 21. However, the document that appears
on the NYSCEF does not contain a filed stamp by the Clerk, nor proof a calendar fee was paid.
Prior to this case proceeding further, plaintiff must produce this proof of filing and payment.
In 2018, a settlement conference was called by the supervising judge and the case was
transferred to Hon. Joel M. Cohen, J.S.C.
Statement of Facts
In or about June-July 2009, Cheng saw what appeared to be a storefront vacancy at the
street level for the building with the address of 711 Second Avenue. (Da05). He formed a
corporation, 711 Second Avenue Inc. (the landlord never checked to confirm the name of the
company), and a lease was signed September 1, 2009. Later, during Supreme Court litigation,
Cheng noted the personal guaranty was dated for July 1, 2009. He recalled receiving a lease draft
prior to the lease signing on September 1, 2009, but not itsdate (petitioner argued it was dated
07/01/2009). During the Supreme Court case, Cheng realized there may have been more than one
restaurant."
lease version. (Da75, Da76). The sole purpose for the rental was for a "Japanese
It was represented to Cheng by a broker who communicated with the landlord and by
restaurant,"
landlord's agents that the premises were supposedly suitable for a "Japanese takeout
on the order of a "Teriyaki Boy"-style takeout business. The premises consisted of "a retail store
basement,"
plus a as recited in the lease. (Da71). The basement was immediately under the store.
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The Notice of Petition and Petition in the L&T case, LT-60290-10/NY, refers to the address
ST-2,"
as "711 Second Avenue Unit (Da27), but those were not the premises rented. What was
basement"
rented was a firstfloor storefront, "retail store plus a (no serial number).
At one point, Cheng was shown what were supposed to be kitchen ventilation ducts on the
walls and was taken to the roof by the super to be shown a ventilation outlet supposedly used for
commercial cooking. (Da05). (The super had keys to the building and premises.)
When the lease was signed, defendants tendered one month's rent and a three-month
security deposit, as they believed they could viably operate a Japanese takeout place (e.g. "Teriyaki
Boy"). There was a three-month rent concession to build out the restaurant. The firstrent was
due 12/01/2009, which had been paid at lease signing. Id. No keys were actually supplied to
defendants: the super and the broker retained the keys.
Defendant hired an architect who told them: (a) the Building premises had no Certificate
of Occupancy and (b) the premises were unsuitable for the use intended-no restaurant. Id. By
this point, it was already December 2009 and the three-month rent concession had expired, plus
the first month paid in advance had been applied. (Da06). In January 2010, defendants requested
that the landlord provide them with an additional rent concession, so defendants could correct
deficiencies to operate the premises as a restaurant, as their plans for renovation were rejected on
01/21/2010. (Da93). The management company refused (defendants dealt with a management
company, which had a name similar to that of plaintiff (BLDG Management Co., Inc.). (Da06).
It is important to emphasize that neither corporate defendant, Cheng nor any employee
actually occupied the physical space. The broker had kept the key and the architect was given
access to draw up plans and to attempt to obtain approvals, but neither 711 Second Avenue Inc.,
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nor any of its equipment and employees, nor any of my employees, nor Cheng, had occupied the
space. They were waiting for Buildings approvals to move in. I_d.
The_February 23, 2010 Lockout
On February 23, 2010, in response to continued dialogue over the request for an extended
rent concession, and a 02/23/2010 fax requesting a rent abatement, plaintiff's agents changed the
locks and locked out the defendants. See id, (Da94), (Da95), (Da47) (Notice to Admit, ¶¶ 17-20,
plaintiff, in sum and substance, admits defendants no longer had access as of 02/23/2010). The
"emergency"
claim there was an was a pretext, as the super had duplicate keys to the premises.
defendants'
As stated above, no member of company, whose name is misalleged in the
L&T court papers as 711 Second Ave. Corp. along with Cheng, sued as tenant, occupied the
respondent-tenant,"
premises. (Da24, Da27). In the Petition, itstates Cheng was "a but in Supreme
Court documents plaintiff alleges that Cheng was only a guarantor. Compare (Da23 et al.) with
(Da40 et al.) In any event, defendants never took possession, in form of equipment, employees,
emergency,"
anything, and were locked out 02/23/2010, allegedly because there was a "Con Ed
although the super, plaintiff's alleged employee, clearly had a set of duplicate keys because Cheng
saw him with the keys when the super showed Cheng the roof chimney. The defendants as
respondents were never served a Notice to Cure under the lease, a Three-Day Notice, nor the
Notice of Petition and Petition, as plaintiff ignored Paragraph 70 of the lease. (Da87).
Argument
Point I
Res Judicata and Plaintiff's Blatant Fraud
in Civil Court Are Bars to this Action
Mr. Moraco correctly argues that this matter is barred by the Civil Court summary
proceeding on the basis of, more or less, res judicata, or other theories-but for reasons that are
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FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019
opposite to the reasons that defendants raise herein. See Pl. Memo at 9. At the time Mr. Moraco
had written his memorandum, defendants had not yet filed their Order to Show Cause. (Da02).
Mr. Moraco
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Torts - Other (Declaratory Judgment) |
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Ruling
ABDALLAH ELHANIA ET AL VS. AIRBNB, INC. ET AL
Jul 18, 2024 |
CGC23605312
Real Property/Housing Court Law and Motion Calendar for July 18, 2024 line 6. DEFENDANT AIRBNB, INC. DEMURRER to Amended COMPLAINT is continued to August 6, 2024 on Court's own motion. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.
Ruling
Anderson white VS Kidango, Inc.
Jul 18, 2024 |
Civil Unlimited (Other Personal Injury/Propert...) |
RG20058141
RG20058141: Anderson white VS Kidango, Inc.
07/18/2024 Hearing on Motion - Other Petition for Approval of Compromise of Claim or
Action or Disposition of Proceeds of Judgment for Minor or Person with Disability; filed by
Jayla Anderson White (Plaintiff) in Department 24
Tentative Ruling - 07/16/2024 Rebekah Evenson
The Hearing on Motion - Other Petition for Approval of Compromise of Claim or Action or
Disposition of Proceeds of Judgment for Minor or Person with Disability; filed by Jayla
Anderson White (Plaintiff) scheduled for 07/18/2024 is continued to 09/05/2024 at 09:00 AM in
Department 24 at Rene C. Davidson Courthouse .
The hearing on Defendants’ Petition for Approval of Compromise of Claim of minor Plaintiff
Jayla Anderson White is continued to September 5, 2024 at 9:00 a.m. in Department 24.
Plaintiff’s guardian ad litem has not retained an attorney of record to represent Plaintiff in this
case. In addition, Defendants filed a Case Management Conference Statement on June 20, 2024
indicating (on page 5, paragraph 15) that Plaintiff’s guardian ad litem passed away in May. If
that is true, Plaintiff will need to have a new guardian ad litem appointed..
A guardian ad litem who is not an attorney cannot represent himself or herself (or the minor) in
litigation, but instead must retain a duly licensed attorney to represent the minor. (See J.W. v.
Superior Court (1993) 17 Cal.App.4th 958, 965.)
Defendants are directed to notify Plaintiff of this ruling. If Plaintiff has not obtained appointment
of a guardian ad litem by August 15, 2024, Defendant shall submit a declaration describing their
efforts to identify the present parent or guardian for Plaintiff, and to communicate with Plaintiff
and/or Plaintiff’s guardian regarding appointment of Guardian ad Litem and retention of counsel.
Ruling
ZHIWEI CHEN VS VERIZON WIRELESS SERVICES, LLC
Jul 17, 2024 |
23AHCV01967
Case Number:
23AHCV01967
Hearing Date:
July 17, 2024
Dept:
X
Tentative Ruling
Judge Joel L. Lofton, Department X
HEARING DATE:
July 17, 2024
TRIAL DATE: No date set.
CASE:
Zhiwei Chen v. Verizon Wireless Services, LLC
CASE NO.:
23AHCV01967
MOTION FOR RECONSIDERATION
MOVING PARTY
:
Plaintiff Zhiwei Chen
RESPONDING PARTY
:
Defendant Verizon Wireless Services, LLC
OPPOSITION:
NO OPPOSITION FILED
REPLY:
None filed.
RELIEF REQUESTED
Plaintiff moves for reconsideration of the Courts May 16, 2024 order denying Plaintiffs Motion to Vacate ruling in favor of the defendants application for arbitration.
BACKGROUND
Plaintiff Zhiwei Chen filed this action against defendant Verizon Wireless Services, LLC on on August 28, 2023. Plaintiff has been self-represented since the outset of the suit. Plaintiff alleges Defendant committed an intentional tort wherein Defendant used technical means to take control of [Plaintiffs] phone ... [and] forged the plaintiffs signature with the intention of taking possession of plaintiffs property. (Compl., p. 4, ¶ IT-1.)
On November 7, 2023, the Court granted Defendants motion to compel the parties to arbitrate their dispute. The Court stayed the action pending the completion of arbitration.
On March 27, 2024, one hundred forty-one (141) days after the Courts November 2023 order, Plaintiff filed a Motion to Quash to vacate /quash the ruling of November 7, 2023, which he subsequently removed from calendar.
On April 16, 2024, one hundred sixty-one (161) days after the Courts November 2023 order, Plaintiff filed a Motion to Vacate ruling in favor of the defendants application for arbitration.
On May 16, 2024, the Court denied Plaintiffs motion to vacate.
On May 20, 2024, Plaintiff filed the instant motion for reconsideration of the May 16, 2024 ruling. That motion is now before the Court.
Defendant filed no opposition, although Plaintiff filed no proof of service indicating Plaintiff gave Defendant notice of his motion.
Plaintiff filed no reply.
TENTATIVE RULING
The motion is DENIED.
LEGAL STANDARD
When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. (Code Civ. Proc., § 1008(a).)
If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order. (Code Civ. Proc., § 1008 (c); see also
Le Francois v. Goel
(2005) 35 Cal.4th 1094, 1106-1107.)
DISCUSSION
As an initial matter: Plaintiffs Motion to Vacate was, in operation, a motion to reconsider, which the Court denied. (See 05-16-2024 Minute Order, p.2 [recharacterizing motion by relief sought].) The instant motion is a motion to reconsider the Courts ruling on a motion to reconsider. Any renewed motion, including a renewed motion for reconsideration, must be justified by new facts or law. (See
Le Francois v. Goel
,
supra
, 35 Cal.4th at p. 1099.) Plaintiff objects that the Court did not consider evidence that was already available at the time of the May 16, 2024 ruling. This does not justify a renewed motion for reconsideration of the Courts November 2023 order, nor does it justify a motion to reconsider the motion to reconsider.
For the same reason, reconsideration under Code of Civil Procedure section 1008(a) is unwarranted. Plaintiff specified no
new
or
different
facts, circumstances etc. in his declaration(s) accompanying his motion.
Reconsideration under section 1008(c) is similarly unwarranted. Plaintiff cites no relevant change in the law since November 2023, and the Court is aware of none. The Court declines to exercise its own discretion to reconsider either prior ruling.
Plaintiffs motion is denied.
Court to provide notice.
Dated:
July 17, 2024
___________________________________
Joel L. Lofton
Judge of the Superior Court
Ruling
Morales VS Extended Stay America, Inc.
Jul 18, 2024 |
Civil Unlimited (Other Personal Injury/Propert...) |
RG20061971
RG20061971: Morales VS Extended Stay America, Inc.
07/18/2024 Hearing on Motion to Reclassify (Walker Motion) filed by ESA Management,
LLC (Defendant) + in Department 518
Tentative Ruling - 07/16/2024 Victoria Kolakowski
The Motion to Reclassify filed by ESA Management, LLC, Extended Stay America, Inc. on
06/13/2024 is Denied.
I. Background
Nahum Morales sued Extended Stay America, Inc. and ESA Management, LLC (“Defendants”),
among others, for injuries allegedly sustained after being bit by bedbugs after staying an
Extended Stay America hotel in Union City, California. (Compl. ¶ 1, May 11, 2020.) In his
complaint—filed as an unlimited civil action—Morales requested to recover an unspecified
amount of general, specific, and punitive damages, among other claims for relief. (Id. § 7.)
Defendants filed an answer generally denying the allegations and asserting several affirmative
defenses. (Answer, Feb. 16, 2021.)
Following Morales’s responses to Defendants’ discovery requests and testimony from his
deposition about his medical expenses and property damage, Defendants moved to reclassify the
action as a limited civil action. (Mot., June 13, 2024.) Defendants argued Morales’s known
medical expenses were under the $35,000.00 threshold and that Morales lacked evidence to
support his property damage claim. (Id. 7:4–9:23, 10:19–11:13; see also Reply Mem. 2:4–11
(noting SB-71 (enacted October 13, 2023, raised amount in controversy to $35,000.00).)
Morales opposed. (Opp’n Mem., July 3, 2024.) Morales noted that he sought $250,000.00 in
general damages along with his claim for special damages for his medical expenses. (Id. 3:15–
4:9.)
II. Legal Standard
“[A] defendant . . . may file a motion for reclassification within the time allowed for that party to
respond to the initial pleading.” (Code Civ. Proc. § 403.040(a).) “If a party files a motion for
reclassification after the time for that party . . . to respond to a complaint . . . , the court shall
grant the motion and enter an order for reclassification only if both of the following conditions
are satisfied: [¶] [t]he case is incorrectly classified[] [¶] [t]he moving party shows good cause for
not seeking reclassification earlier.” (§ 403.040(b)(1), (2).) “The court shall grant the motion and
enter an order for reclassification, regardless of any fault or lack of fault, if the case has been
classified in an incorrect jurisdictional classification.” (§ 403.040(a); see also Ytuarte v. Super.
Ct. (Kashani) (2005) 129 Cal. App. 4th 266, 277 (“[A] matter may be reclassified as a limited
civil action ‘when (i) the absence of jurisdiction is apparent before trial from the complaint,
petition, or related documents, or (ii) during the course of pretrial litigation, it becomes clear that
the matter will “necessarily” result in a verdict below the superior court’s jurisdictional amount .
. . .”) (quoting Walker v. Super. Ct. (Slaton), 53 Cal. 3d 257, 262).) “This standard involves an
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
RG20061971: Morales VS Extended Stay America, Inc.
07/18/2024 Hearing on Motion to Reclassify (Walker Motion) filed by ESA Management,
LLC (Defendant) + in Department 518
evaluation of the amount fairly in controversy, not an adjudication of the merits of the claim, and
according to Walker, requires a ‘high level of certainty that [the] damage award will not exceed
$[3]5,000.’” (Id. (quoting Walker, 53 Cal. 3d at 269.)
III. Discussion
The Court finds that Morales’s action does not necessarily involve less than $35,000.00.
Defendants did not carry their burden of showing that the damage award cannot exceed the
monetary threshold. Accordingly, the Court will not reclassify this action as a limited civil case.
IV. Order
The motion is DENIED.
PLEASE NOTE: Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative
ruling will become the order of the Court unless it is contested before 4:00 PM on the court day
preceding the noticed hearing.
To contest a tentative ruling, a party should do the following:
First, the party must notify Department 518, by email at Dept518@alameda.courts.ca.gov and
copy all counsel of record and self-represented parties. The contesting party must state in the
subject line of the email the case name, case number and motion.
Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case
number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this
Ruling" button, enter the party's name and a brief statement of the party's reason for contesting
the tentative, and click "Proceed."
Parties may appear via videoconference, using the Zoom.com website or application.
TO CONNECT TO ZOOM:
Department 518 is inviting you to a scheduled ZoomGov meeting.
Topic: Department 518's Personal Meeting Room
Join ZoomGov Meeting
https://alameda-courts-ca-gov.zoomgov.com/j/16054307984
Meeting ID: 160 5430 7984
One tap mobile
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
RG20061971: Morales VS Extended Stay America, Inc.
07/18/2024 Hearing on Motion to Reclassify (Walker Motion) filed by ESA Management,
LLC (Defendant) + in Department 518
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Ruling
SANTIAGO AJANEL, ET AL. VS LOS ANGELES POLICE DEPARTMENT, A PUBLIC ENTITY, ET AL.
Jul 18, 2024 |
22STCV29612
Case Number:
22STCV29612
Hearing Date:
July 18, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPARTMENT
32
HEARING DATE
July 18, 2024
CASE NUMBER
22STCV29612
MOTION
Motion to Continue Trial
MOVING
PARTIES
Defendant City of Los Angeles
OPPOSING PARTY
Unopposed
MOTION
Defendant City of Los Angeles (Defendant) moves to continue trial. No opposition has been filed.
BACKGROUND
The complaint was filed on September 12, 2022. Trial was initially set for March 11, 2024.
Defendants answer was filed on November 15, 2022.
On February 8, 2024, pursuant to stipulation, the Court continued trial and all related dates to September 17, 2024.
On May 29, 2024, Defendant filed and electronically served a motion for summary judgment. The hearing for summary judgment is currently scheduled for September 24, 2024.
ANALYSIS
Legal Standard
Continuances are granted only on an affirmative showing of good cause requiring a continuance. (
In re Marriage of Falcone & Fyke
(2008) 164 Cal.App.4th 814, 823.) A trial court has broad discretion in considering a request for a trial continuance. (
Pham v. Nguyen
(1997) 54 Cal.App.4th 11, 13-18.) California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial.
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. (Cal. Rules of Court, rule 3.1332(a).)
A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered. (Cal. Rules of Court, rule 3.1332(b).)
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. Circumstances that may indicate good cause include:
(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 partys involvement in the case;
(6)
A partys 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.
(Cal. Rules of Court, rule 3.1332(c).)
In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include:
(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 courts 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.
(Cal. Rules of Court, rule 3.1332(d).)
A party may move for summary judgment at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.¿ (Code Civ. Proc., § 437c, subd. (a)(1).)¿ Notice of the motion and supporting papers must be served on all other parties at least 75 days before the time appointed for hearing.¿ (
Id.
, subd. (a)(2).)¿ The motion must be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.¿ (
Id.
, subd. (a)(3).)¿¿¿
Discussion
Defendant requests the Court continue trial in this case to at least 30 days after the September 24, 2024 summary judgment hearing.
A party that timely files a motion for summary judgment under Code of Civil Procedure section 437c has a right to have their motion heard before the start of trial. (
Cole v. Superior Court
(2022) 87 Cal.App.5th 84, 88.)
If served electronically, a motion for summary judgment must be made at least 105 days before trial, plus two court days. (See Code Civ. Proc. § 437c(a)(2), (3).)
Therefore, a motion for summary judgment in this case needed to be filed by May 31, 2024.
Defendant timely served its motion for summary judgment on May 29, 2024. Defendant argues that the summary judgment hearing could not be reserved until September 24, 2024. (Lee Decl. ¶ 2.) Since that date is after trial,
Defendant requests that the Court continue the trial date to allow for the motion for summary judgment to be heard.
Therefore, since Defendant has filed a timely summary judgment motion, and seeing no opposition, the Court finds good cause to continue trial.
Accordingly, the Court grants the motion to continue trial.
CONCLUSION AND ORDER
The Court GRANTS Defendants motion to continue trial.
The Final Status Conference is continued to October 17, 2024, at 10:00 a.m. in Department 32 of the Spring Street Courthouse.
Trial is continued to October 31, 2024, at 8:30 a.m. in Department 32 of the Spring Street Courthouse.
All discovery and pre-trial motion cut-off dates shall be in accordance with the new trial date.
Defendant shall give notice of this order, and file a proof of service of such.
Ruling
SINGH vs KPC GLOBAL MEDICAL CENTERS, INC.
Jul 18, 2024 |
CVSW2200991
MOTION TO COMPEL RESPONSES TO
SINGH VS KPC GLOBAL PRODUCTION OF DOCUMENTS;
CVSW2200991
MEDICAL CENTERS, INC. REQUEST MONETARY SANCTIONS BY
KPC GLOBAL MEDICAL CENTERS, INC.
Tentative Ruling:
See 1.
Ruling
ENRIGHT vs SUTTER BAY HOSPITALS DBA ALTA BATES SUMMIT MEDICAL...
Jul 18, 2024 |
Civil Unlimited (Civil Rights/Discrimination) |
22CV007747
22CV007747: ENRIGHT vs SUTTER BAY HOSPITALS DBA ALTA BATES SUMMIT
MEDICAL CENTER, A CALIFORNIA CORPORATION, et al.
07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by
ELIZABETH ENRIGHT (Plaintiff) in Department 20
Tentative Ruling - 07/15/2024 Karin Schwartz
The Motion to Compel the Deposition of Daniel Baer is DROPPED because no motion is on file.
Plaintiff filed an ex parte application but did not file a motion. The Court's intention, when it
granted the ex parte on 7/8/24, was to advance the hearing date on an already filed and scheduled
motion. However, it appears that no motion with respect to Daniel Baer had been filed (i.e., only
the ex parte).
Separately, the Court, through a misunderstanding, advanced the hearing date on a separately
pending motion to compel (i.e., CCP 1987 notice) to 7/18/24. However, per the Court's order of
7/12/24, any matters relating to that motion will be heard at the pretrial on 8/2/24. Accordingly,
the Court is continuing the hearing on this motion, which the Court inadvertently advanced to
7/18/24, to the date before the the pretrial, which is an ordinary law and motion day for the
Court.
The Hearing on Motion to Compel Discovery (not "Further Discovery") filed by ELIZABETH
ENRIGHT (Plaintiff) scheduled for 07/18/2024 is continued to 08/01/2024 at 03:00 PM in
Department 20 at Rene C. Davidson Courthouse .
If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the
Tentative Ruling will become the order of the court.
HOW DO I CONTEST A TENTATIVE RULING?
THROUGH ECOURT
Notify the Court and all the other parties no later than 4:00 PM one court day before the
scheduled hearing, and briefly identify the issues you wish to argue through the following steps:
1. Log into eCourt Public Portal
2. Case Search
3. Enter the Case Number and select “Search”
4. Select the Case Name
5. Select the Tentative Rulings Tab
6. Select “Click to Contest this Ruling”
7. Enter your Name and Reason for Contesting
8. Select “Proceed”
BY EMAIL
Send an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM one
court day before the scheduled hearing. This will permit the department clerk to send invitations
to counsel to appear remotely.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
22CV007747: ENRIGHT vs SUTTER BAY HOSPITALS DBA ALTA BATES SUMMIT
MEDICAL CENTER, A CALIFORNIA CORPORATION, et al.
07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by
ELIZABETH ENRIGHT (Plaintiff) in Department 20
BOTH ECOURT AND EMAIL notices are required.
Ruling
RICHARD CABRERA-LARA VS ARBOL GRADING, INC., ET AL.
Jul 16, 2024 |
21STCV19154
Case Number:
21STCV19154
Hearing Date:
July 16, 2024
Dept:
B
RICHARD CABRERA-LARA V. ARBOL GRADING, INC., ET AL.
MOTION FOR SUMMARY JUDGMENT/Summary adjudication
Date of Hearing:
July 16, 2024
Trial Date:
August 16, 2024
Department:
B
Case No.:
21STCV19154
Moving Party:
Defendant and Cross-Complaint Melt De La Paz Inc. (Melt)
Responding Party:
Plaintiff Richard Cabrera-Lara (Plaintiff) and Plaintiff-in-Intervention State Farm Fire and Casualty Company (State Farm)
BACKGROUND
This action arises from Plaintiff Richard Cabrera-Lara (Plaintiff) allegedly sustaining injuries while working on a construction project on May 12, 2020 at 2451 Summitridge Drive, Beverly Hills, California. Plaintiff alleges that he sustained injuries while assisting with the cleaning of a heavy-duty drill.
On May 20, 2021, Plaintiff filed a Complaint against Defendants Arbol Grading, Inc. dba Arbol Construction (Arbol), Melt De La Paz, Inc. (Melt), Miguel Mitchell (Mitchell), and Does 1 to 100, inclusive (collectively, the Defendants), alleging a single cause of action for General Negligence.
On April 15, 2022, State Farm Fire and Casualty Company (State Farm) filed a Motion for Leave to File a Complaint-in-Intervention.
On June 24, 2022, Defendant Melt filed its Answer to the Complaint. Also, on such date, Defendant Melt filed a Cross-Complaint against Roes 1 through 10, inclusive, alleging causes of action for: (1) Indemnity; (2) Contribution; and (3) Declaratory Relief.
On July 29, 2022, Defendant Arbol filed its Answer to the Complaint.
On September 7, 2022, the Honorable Audra Mori sitting in Department 31 at Spring Street Courthouse granted State Farms Motion for Leave to Intervene. (09/07/22 Minute Order.)
On September 9, 2022, State Farm filed a Complaint-in-Intervention against Defendants Arbol, Melt, and Mitchell alleging causes of action for: (1) General Negligence; and (2) Products Liability.
On September 22, 2022, Defendant Melt filed its Answer to the Complaint-in-Intervention.
On October 6, 2022, Defendant Arbol filed its Answer to the Complaint-in-Intervention.
On April 30, 2024, Defendant Melt filed and served the instant Motion for Summary Judgment or, alternatively, Motion for Summary Adjudication as to the Complaint (the Motion).
[1]
The Motion is made on the grounds that Plaintiffs cause of action against Defendant Melt is barred the doctrine of workers compensation exclusivity. Specifically, Defendant Melt argues that, because Plaintiff was a special employee of Defendant Melt at the time of the alleged injury, Plaintiffs sole remedy is through the workers compensation scheme.
If summary judgment cannot be granted, Defendant Melt moves for summary adjudication on the sole issue that Plaintiffs cause of action for negligence is barred by the workers compensation exclusivity rule.
On July 1, 2024, State Farm filed an opposition to the Motion.
On July 1, 2024, Plaintiff also filed an opposition to the Motion.
On July 11, 2024, Defendant Melt filed respective reply briefs as to the oppositions filed by Plaintiff and State Farm.
Given that the oppositions make similar and oftentimes overlapping arguments, the Court will address the respective oppositions collectively. The Court, however, will address the evidence presented by Plaintiff and State Farm separately where appropriate.
Initially, the Court notes that Defendant Melt only presents 10 undisputed material facts in support of the Motion. State Farm does not dispute any of Defendant Melts undisputed material facts.
[2]
Plaintiff only disputes Defendant Melts UMF Nos. 3, 5, and 6.
[Tentative] Ruling
The Motion for Summary Judgment, or alternatively, Motion for Summary Adjudication (the Motion) filed by Defendant Melt De La Paz Inc. is DENIED in its entirety.
DISCUSSION
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (
Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843.) Code Civ. Proc. § 437c(c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
(
Adler v. Manor Healthcare Corp
. (1992) 7 Cal.App.4th 1110, 1119.)
The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.
(
Juge v. County of Sacramento
(1993) 12 Cal.App.4th 59, 67.)
A cause of action has no merit if [o]ne or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded. (Code Civ. Proc., § 437c, subd. (o)(1).) A defendant has met its burden in showing that a cause of action has no merit if the defendant has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has met its burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (
Ibid
.)
As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (
Scalf v. D. B. Log Homes, Inc.
(2005) 128 Cal.App.4th 1510, 1520.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.
(
Dore v. Arnold Worldwide, Inc.
(2006) 39 Cal.4th 384, 389.) Once the defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (
Aguilar v. Atlantic Richfield Co.
,
supra
, 25 Cal.4th 826, 849.)
The summary judgment statute [is] not intended nor can it be used as a substitute for existing methods in the trial of issues of fact. (
Travelers Indemn. Co. v. McIntosh
(1952) 112 Cal.App.2d 177, 182.) The summary judgment procedure is drastic and should be used with caution. (
House v. Lala
(1960) 180 Cal.App.2d 412, 415.) Any doubt in granting summary judgment should be exercised against the moving party. (
Ibid
.) Summary adjudication motions are procedurally identical to summary judgment motions. (
Dunn v. County of Santa Barbara
(2006) 135 Cal.App.4th 1281, 1290.)
Evidentiary Objections
The Court SUSTAINS Plaintiffs evidentiary objection number 1 to the declaration of Jonathan A. Termechi, Esq. in support of the Motion. Defendant Melt is improperly using its own interrogatory responses in support of the Motion. A partys own . . . interrogatory responses . . . cannot itself serve as competent evidence to create a genuine issue of material fact. (
Bayramoglu v. Nationstar Mortgage LLC
(2020) 51 Cal.App.5th 726, 740.)
Issue No.1: The Workers Compensation Exclusivity Rule
California Workers Compensation Act . . . provides an employees exclusive remedy against his or her employer for injuries arising out of and in the course of employment. (
Melendrez v. Ameron Internat. Corp.
(2015) 240 Cal.App.4th 632, 638.) Under the workers compensation scheme, an employees remedy against an employer for a work-related injury isas a general ruleexclusively limited to the benefits provided by statute. (
Gigax v. Ralston Purina Co.
(1982) 136 Cal.App.3d 591, 597.) According to Labor Code section 3601 [w]here the conditions of compensation exist, the right to recover such compensation pursuant to the provisions of this division is, except as provided in Section 3706 the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment . . . . (
Ibid
.) An employee, however, retains the right to pursue any common law remedies he may have against third party tortfeasors. (
Id
. at p. 598.) The claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer . . . . (
Ibid
.) The workers compensation laws were not designed to relieve one other than the employer from any liability imposed by statute or by common law. (
Ibid
.)
Whether an employees injury arose out of and in the course of [his] employment is generally a question of fact to be determined in light of the circumstances of the particular case. (
Melendrez
,
supra
, 240 Cal.App.4th at p. 639, citation omitted.) When there is no dispute as to the facts, the question of whether an injury was suffered in the course of employment is one of law . . . . (
Ibid
.)
A special employment relationship arises when an employer lends an employee to another employer and relinquishes to the borrowing employer all right of control over the employees activities. (
Riley v. Southwest Marine, Inc.
(1988) 203 Cal.App.3d 1242, 1247.) The borrowed employee is held to have two employershis original or general employer and a second, the special employer. (
Id
. at p. 1247-48.) In this dual employer situation, the employee is generally limited to a statutory workers compensation remedy for injuries he receives in the course of his employment with the special employer; he may not bring a separate tort action against either employer. (
Id
. at p. 1248.)
Whether an employment relationship existed is a question for the trier of fact [w]here the evidence, though not in conflict, permits conflicting inferences. (
Ibid
.) However, if neither the evidence nor inferences are in conflict, then the question of whether an employment relationship exists becomes a question of law which may be resolved by summary judgment. (
Ibid
.)
The determination of whether a worker is a borrowed servant is accomplished by ascertaining who has the power to control and direct the servants in the performance of their work, distinguishing between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking. (
Collins v. Union Pacific Railroad Co.
(2012) 207 Cal.App.4th 867, 879.)
[W]here there is a dual employment the workman is barred from an action for damages against either employer. (
Kowalski v. Shell Oil Co.
(1979) 23 Cal.3d 168, 175.) In assessing the existence of a special employment relationship, the primary consideration is whether the employer has [t]he right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not. (
Id
. at p. 175.)
The following factors are analyzed in determining whether a special employment relationship exists: (1) whether the borrowing employers control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; (2) whether the employee is performing the special employers work; (3) whether there was an agreement, understanding, or meeting of the minds between the original and special employer; (4) whether the employee acquiesced in the new work situation; (5) whether the original employer terminated his relationship with the employee; (6) whether the special employer furnished the tools and place for performance; (7) whether the new employment was over a considerable length of time; (8) whether the borrowing employer had the right to fire the employee; and (9) whether the borrowing employer had the obligation to pay the employee. (
Riley
,
supra
, 203 Cal.App.3d at p. 1250.)
Defendant Melts Evidence
Defendant Melt presents the following undisputed material facts: Plaintiff generally alleges that, on May 12, 2020, he was working on a home construction site at or near 2451 Summitridge Drive, Beverly Hills, California. (Defendant Melts Separate Statement of Facts (DSSF) No. 1.) At the time of the subject incident, Plaintiff was an ironworker apprentice for Cruz Concrete Stone, Inc. (Cruz), a masonry and rebar contractor on the project. (DSSF No. 2.) Plaintiff was informed by his supervisor at Cruz that he needed to assist an employee of Defendant Melt named Miguel Mitchell (Mitchell), by measuring holes being drilled by Defendant Melt using a large drill with an auger. (DSSF No. 4.) When replacing the drill bit, the drill allegedly moved in an upward direction, which injured Plaintiffs fingers. (DSSF No. 7.) As a result of the subject incident, Plaintiff filed a workers compensation claim with Cruzs workers compensation insurance. (DSSF No. 8.) On or about May 20, 2021, Plaintiff filed the instant action against Defendant Melt, alleging one cause of action for general negligence. (DSSF No. 9.) Based on his discovery responses, Plaintiff alleges that Defendant Melt carelessly, recklessly and negligently screened, hired, employed, trained, supervised and monitored Defendant Mitchell which left an untrained, unsafe, unsupervised worker at the controls of a dangerous machine working with Plaintiff and ultimately caused the subject incident. (DSSF No. 10.)
Defendant Melt presents evidence that Plaintiff accepted the request from his supervisor at Cruz to assist Defendant Mitchell. (Termechi Decl., Ex. H at p. 163:12-21, 164:16-21, and 165:18-19.)
[3]
Defendant Melt presents evidence that while assisting Defendant Mitchell, Plaintiff was asked to replace a drill bit. (Termechi Decl., Ex. E at Nos. 13, 15, 19, 21, and 27.)
Analysis
The Court finds that Defendant Melt has not met its burden to establish that a special employment relationship existed between Plaintiff and Defendant Melt, and therefore the burden does not shift to Plaintiff or State Farm to show a triable issue of fact.
Defendant Melt presents no evidence that it had the right to control and direct the activities of Plaintiff or the manner and method in which Plaintiffs work was performed. All the evidence presented by Defendant Melt shows is that Plaintiff was asked by his supervisor at Cruz to assist an employee of Defendant Melt by measuring holes being drilled, and that Plaintiff was injured during such activity.
Defendant Melt presents no evidence as to whether: (1) it had control over Plaintiffs work; (2) Plaintiff was performing the work of Defendant Melt; (3) there was an agreement between Cruz and Defendant Melt; (4) Cruz terminated its relationship with Plaintiff; (5) Defendant Melt furnished any tools to Plaintiff; (6) Plaintiff worked for or with Defendant Melt for a considerable period of time; (7) Defendant Melt had the right to fire Plaintiff; and (8) Defendant Melt had any obligation to pay Plaintiff. (
Riley
,
supra
, 203 Cal.App.3d 1242, 1250.) Defendant Melt has made a showing of neither the primary factor nor secondary factors articulated in
Riley
,
supra
, 203 Cal.App.3d 1242, 1250.
Summary judgment and summary adjudication are therefore inappropriate.
Even if Defendant Melt had met its burden to show that there was a special employment relationship, the Court would have found that both State Farm and Plaintiff presented respective evidence to establish a triable issue of fact.
State Farm presented evidence that the Person Most Knowledgeable (PMK) at Defendant Melt testified at deposition that: (1) Defendant Melt never employed Plaintiff; (2) Defendant Melt never intended to hire Plaintiff even on a temporary basis; (3) Plaintiff never served as an agent or employee of Defendant Melt in any manner. (Salley Decl., ¶ 2; Ex. A at p. 91:25-92:21.) State Farm presented evidence that a supervisor from Cruz told Plaintiff to go help with the drilling machine. (Salley Decl., ¶ 3; Ex. B at p. 90:18-91:9.)
Plaintiff presented the following evidence: he was working for Cruz on the day of the incident. (Upton Decl., ¶ 3; Ex. 1 at p. 28:18-21.) At the time of the incident, Plaintiff received a paycheck from Cruz. (Upton Decl., ¶ 3; Ex. 1 at p. 84:25-85:5.) Plaintiff was asked by a foreman from Cruz to measure holes being drilled in the ground. (Upton Decl., ¶ 3; Ex. 1 at p. 90:21-24.) Plaintiffs supervisor from Cruz provided him with instructions on how to measure. (Upton Decl., ¶ 3; Ex. 1 at p. 110:19-111:1 and 113:1-3.) There was no agreement between Cruz and Defendant Melt for Defendant Melt to temporarily hire one of Cruzs employees. (Upton Decl., ¶ 4; Ex. 2 at p. 38:23-39:4.) Defendant Melt never intended to hire Plaintiff even on a temporary basis and never employed Plaintiff. (Upton Decl., ¶ 4; Ex. 2 at p. 91:25-92:6.) Plaintiff has never served as an agent or employee of any kind for Defendant Melt. (Upton Decl., ¶ 4; Ex. 2 at p. 92:14-18.)
Thus, even if Defendant Melt had met its initial burden to show the existence of a special employment relationship, the Court would have found that both Plaintiff and State Farm presented evidence to show the existence of a triable issue of material fact.
CONCLUSION
Based on the foregoing, the Motion is DENIED in its entirety.
Moving party is ordered to give notice.
[1]
The Motion has a reservation identification number ending in 8616.
[2]
State Farm only objected to Defendant Melts UMF No. 6 in its responsive separate statement; however, State Farm failed to file any separate evidentiary objections. As such, the Court deems State Farm to not have disputed Defendant Melts UMF No. 6. The Court reminds the parties that if it is not set forth in the separate statement,
it does not exist
. (
San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A.
(2002) 102 Cal.App.4th 308, 313, emphasis in original.)
[3]
Defendant Melt cites to non-existent pages of deposition testimony that are not included in Exhibit H. (See DSSF No. 5.) There is no page 90, 91, 94, 135, 238, or 242 in Exhibit H, which is attached to the declaration of Mr. Termechi in support of the Motion.
Document
Isabella Hernandez v. Aqsa Shakoor M.D., Robert E. Berg M.D., Regina Matar-Ujvary M.D., Nyu Tisch Hospital, Nyu Langone Medical Center, Nyu Langone Hospitals, Nyu Langone Health System,, Covidien Lp, Covidien Sales, Llc, Covidien Holding, Inc., Medtronic, Inc.
Jul 17, 2024 |
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
805200/2024
Preview
FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS Part 45 ________________ .-----------X : Index No. 110703/2011 BLDG ABI ENTERPRISES, LLC, : : Hon. Joel M. Cohen, J.S.C. Plaintiff, : : CIVIL ACTION -against- : 711 SECOND AVE CORP. and : IAN CHENG, AS GUARANTOR, : : This isan action converted to Defendants; an NYSCEF action. : 711 SECOND AVE CORP. and : IAN CHENG, AS GUARANTOR, : Premises: : "711 Second Avenue York" Defendants-Counterclaiiñañts, : County, City and State of New : (alleged in A:ncñded Cemphint) BLDG ABI ENTERPRISES, LLC, : : Countcrclaim Defêñdañt. : x DEFENDANTS' PRE-TRIAL MEMORANDUM OF LAW PLUS PARTIAL APPENDIX Respectfully submitted by: Michael R. Curran Attorney for Defendants 98-120 Queens Boulevard, Suite #1-C Rego Park, New York 11374-4414 (718) 830-0246, ext. 127 (tel.) (718) 830-7741 (tel.) mrc4law@yahoo.com TO: Mr. Robert Marace, Esq. Attorney for Plaintiff ViaNYSCEF service 1 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 TABLE of CONTENTS Page No. Table of Contents . .. . . . . . . . .. .. .. . ... . ... .. .. .. .. .. .. . ... .. .. .. . .. ... i Table of Authorities .... . .... . ..... .. . ... . ................ . .. ... . .... . iv Preliminary Statement. . .. . .. . . .. .. .. . ... .. .. .. .. .. .. .. .. . ... .. .. .. .. .. . 1 Procedural History............... ... . ... . ... . ... .......... . .. ... . ... .. 3 Statement of Facts. . ... .. .. . ... .. .. .. .. .. .. .......... . .. ... .. .. .. .. .. . 4 The February 23, 2010 Lockout . .. ... .. .......... . .... . .. ... . .. ... 6 Argument. . .. .. .. . ... .. . ... .. .. ... .. . ... .. .. .. .. .. .. .. . ... .. . ... .. . 6 Point I Res Judicata and Plaintiff's Blatant Fraud in Civil Court Are Bars to this Action 6 Point II The Civil Court Action Was Defective, Subject to Dismissal and Is a Separate Bar to This Action 9 Point III The Lockout Cut Off Any Rent Claims Together with Plaintiff Re-Letting the Premises 10 Point IV Plaintiff Possibly Had Privity of Contract, But Not Privity of Estate with Defeñdañ‡s 11 Conclusion. . .. .. .. ............... . ................... . .. .. .. .. .. .. .. 13 Appendix .. . ... ............................... . .. .. .. .. .... . .. .. .. .. 14 06/17/2010 Marshal's Legal Possession Notice (upon execution of warrant). . .. .. . Dal 02/14/2019 Order to Show Cause to Vacate Judgment in LT-60290-10/NY . .. .. .. . Da2 2 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 02/10/2019 Affidavit of Ian Cheng in Support . .. .. .. .. .. .. ... .. . . . . .. . Da4 02/13/2019 Affirmation in Support . . . . .. . ... . ........... . .. .. .. .. .. . Dal2 Exhibit A: Judgment of -0- Warrant of Eviction Da20 Possession, Money Judgment, Exhibit B: 03/19/2010 Notice of Petition and Petition, Affidavits of Service Da23 Exhibit C: 05/22/2013 Amended Complaint (from Moraco) NYSCEF Doc 11 Da40 Exhibit D: 10/19/2018 Notice to Admit (unserved, unsigned) NYSCEF Doc 3 Da46 Exhibit E: April 2010-May 2010 sworn documents to obtain default, warrant Da51 Exhibit F: 05/11/2012 Decision & Order (Mills, J.) NYSCEF Doc 14, (page 8 of D&O is missing as filed by plaintiff above) . .. . . . . . . . . . Da59 Exhibit G: 09/01/2019 Lease and Guaranty (as reformed) . .. . . . .. .. . ... . Da70 Lease . .. .. .. .. .. .. . ... . ... .. .. .. .. .. .. .. .. .. ... .. .. .. .. . Da71 Notices, Paragraph 70 . .. .. . . . .. ... ............ . .. .. .. . . . . . Da87 Guaranty . .. .. .. .. .. .. .. . ... .. .. .. .. .. .. .. .. .. . . . .. .. .. .. Da90 Exhibit H: 01/21/2010 Plan Disapproved; 02/23/2010 Lockout Evidence . .. . Da92 OSC Blueback . .. .... . . ... . .. ... . . . .. .. . .. . .... . .. .. .. .. .. . . . . .. Da96 12/31/1998 & 09/01/2000 Deeds indicating premises ownership . .. .. ... . .. . . . . . N/A 380¹ ACRIS page for 241 East Street, 193 LLC, Block 0919, Lot 0025 . . ... .. .. .. . Da97 380' ACRIS page for 243 East Street, Eden Roc Hotel Ltd, Block 0919, Lot 0027 . .. .. Da98 ACRIS page for 711 Second Avenue, Eden Roc Hotel Ltd, Block 0919, Lot 0028 . .. . Da99 12/31/1998 Deed to Eden Roc Hotel Ltd for Block 0919, Lots 0025, 0027, 0028 Da100 09/01/2000 Deed to 193 LLC allegedly for Block 0919, Lot 0025, but also allegedly 380' for 241-43 East Street and 711 Second Avenue, New York, New York Da108 01/09/2015 Dissolution of 711 Second Avenue Inc. (a/k/a 711 Second Ave Corp.) Dal 16 02/14/2019 Notice to Admit Propounded by Defendants NYSCEF Doc 39. . .. .. . Dal 18 li 3 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 02/14/2019 Proof of Service of Notice to Admit above . . ... ...... . .. .. .. ... . Dal31 02/11/2019 Amended Responses to Plaintiff's Notice to Admit (req. Court leave) NYSCEF Doc. 37 . . . . . . . .............. . .. .. .. ...... . ... . .. ... . . Dal32 02/11/2019 Proof of Service of Responses above . .. .. .. .. .. .. .. .. .. . .. . . . .. Dal36 ruling" 01/17/2019 Plaintiff request for "advance on Notice to Admit (unserved) NYSCEF Does. 23-24 . .. . ... . ... .. .. .. .. .. .......... . .. . ... ... . . Dal37 01/17/2019 Proof of NO service Does. 23-24 . .. .... .. .. .. .. ..... . .. .. .. . ... . Dal40 10/19/2018 Proof of NO service Does. 3-4 (unlabeled, unsigned, unserved) . .. .. . Da141 09/18/2018 Consent to E-Filing, ultimately filed 09/28/2018 as NYSCEF Doc. 2, signed by non-e-filer Lawrence Wolf, Esq. (stillnot an e-filer) . .. .. . . . . . . Dal42 09/28/2018 Confirmation of E-Filing of the above, but not copied to anyone . ... . Da143 09/24/2018 E-Mail from Robert Moraco, indicating he took to County Clerk . .. .. Dal 44 09/26/2018 E-Mail indicating that my e-mail was garbled (not blaming anyone) Dal45 iii 4 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 Table of Authorities Federal Cases Page No(s). Hillside Metro Associates, LLC v. JP Morgan Chase Bank. National Association, 747 F.3d 44 (2d Cir. 2014) . .. . ... .. .. .. .. ... .. 12 Court of Appeals Barash v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77, 82-83, 308 N.Y.S.2d 649 (1970) . .. .. ... . ........... . . . . .. .. .. .. .. . 11, Dal9 Chinatown Apartments, Inc. v. Chu Cho Lam, 51 N.Y.2d 786, 433 N.Y.S.2d 89 (1980) . ... .. .. .. .. . .. .. .. ................. . ... .. .. . ... Dal5 Holy Properties Limited. LP v. Kenneth Cole Productions, Inc., 87 N.Y.2d 130 (1995)... . .. ... .. .............. . .. ... .. .. . 10 Matter of Josey v. Goord, 9 N.Y.3d 386, 2007 NY Slip Op. 09963 (2007) 9 Appellate Division APF 286 Mad LLC v. Chittur and Associates P.C., 132 A.D.3d 610, (1st 20 N.Y.S.3d 4 Dept. 2015) .. . ... .. .. ..... . .. .. . . . .. .. . 8 n.4 Berkeley Assocs. Co. v. DiNolfi, 122 A.D.2d 703, 705, 505 N.Y.S.2d 630 (1st Dept. 1986). . .. .. .. .......... . .. .. .. .. .. .. .. .. ... .. .. . 10, Dal7 Caracaus v. Conifer Central Square Associates, 158 A.D.3d 63, 69, N.Y.S.3d 225 (4thDept.2017).............................. 7 Centre Great Neck. LLC v. Rite Aid Corporation, 292 A.D.2d 484, 485, 739 N.Y.S.2d 420, 421 (2d Dept. 2002) . .. .. .. .. .. .. .. .. .. ... . 11 Clarke v. Wallace Oil Corp., 284 A.D.2d 492, 727 N.Y.S.2d 139 (2d Dept. 2001) . .. .. .. .. .. .. .. .. ... .. .. .. .. .. .. .. .. .. .. .. 10, Dal7 Hendrikson v. Lexington Oil Co.. Inc., 41 A.D.2d 672, 672-73, 340 N.Y.S.2d 963, 965 (2d Dept. 1973) . .. .. .. . ... .. ...... . .. . .. . . .. .. .. .. Dal6 Marburt Holding Corp. v. Picto Corp., 5 A.D.2d 617, 173 N.Y.S.2d 762 (1st Dept.1958)), app. eranted, 6 A.D.2d 791, 175 N.Y.S.2d 582 (1st Dept. 1958) . .. .. .. ............ . . ... .. .. .. ... .. .. .. .. . 7-8, Dai7 MSG Pomp Corp. v. Jane Doe, 185 A.D.2d 798, 799-800, 586 N.Y.S.2d 965 (ISt Dept. 1992) . .. . ... .. .... . .. .. .. .......... . .. .. .. .. ... 10, Dal7 iv 5 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 Appellate Term Alex Armonas Development Corp. v. Wottowa, N.Y.L.J., 2/21/97, p. 34 9th th col. 4 (App. Term, Jud.Dists.) . . . . . .. .. ... .. .. .. .. . Dal5 9th th Brophy v. Winter, N.Y.L.J., 3/22/96, p. 30, col. 4 (App. Term, Jud.Dists.) . ... . .. . .. . . . ... .. . ... .. .. .. .. .. .. .. .. . ... .. . Dal5 475 Madison Ave. Coro. v. J. Epstein & Co.. Inc.. N.Y.L.J. 6/30/97, p. 30 1" col. 5 (App. Term, Dept.) . ... .. .. .. .. .. .. .. .. .. .. .. .. . 11, Dal9 Horatio Arms, Inc. v. Celbert, 42 Misc.3d 11, 972 N.Y.S.2d 813, 1" 2013 WL 3942914 at *1 (App. Term, Dept. 2013) . .. .. ... .. . Dal6 Park Property Development v. Santos, 1 Misc.3d 16, 767 N.Y.S.2d 558, 11th 2003 NY Slip Op. (2d & ud.DiStS.)..................... 8 Pelliccia v. Variety Petroluem Corp., N.Y.L.J., 7/9/96, p. 29, col. 6 (App. 9th Term, thJud.DiStS.)............................... 8, Dal7 Stojanoski v. Tonick Enterprises. Ltd., N.Y.L.J., 4/9/96, p. 33, col. 4 (App. 11th Term, 2d & ud.Dists.) . ... .. .. ............. . . . . . ... .. 8, Dal7 Trial Courts BLDG ABI Enterprises, LLC v. 711 Second Ave. Corp. et al.,Index No. LT-60290-10/NY (NY City Civil Court, New York County) . .. .. . 2, Da02 et seq. Citibank v. Amadeo, N.Y.L.J., 11/16/94, p. 26, col. 1 (NY City Civil Court, Kings County) . .. .. ... .. .. ............. . .. .. ... .. .. 10, Dal7 City of New York v. Mortel, 156 Misc.2d 305, 592 N.Y.S.2d 912 (NY City Civil Court, Kings County, 1992) ..................... . .. .. .. 10 Goldman Bros. v. Forester, 62 Misc.2d 812, 309 N.Y.S.2d 694 (NY City Civil Court, New York County, 1970) . . . . .. .. . .. .. .. .. ... .. . 10 Papacostopulos v. Morrelli, 122 Misc.2d 938, 472 N.Y.S.2d 284 (NY City Civil Court, Kings County, 1984) ............... . .. ... .. . ... 10, Dal7 Robles v. Margaritis, 52 Misc.3d 523, 29 N.Y.S.3d 780, 2016 NY Slip Op. 26131 (District Court, Nassau County, 2016)........... . .. 13 11201 7th 200 West Street HDFC v. 1842 Avenue Delicatessen Coro., 30 Misc.3d 1216(A), 958 N.Y.S.2d 649, 2011 WL 294287, 2011 NY Slip Op. 50101(U) (Civil Court, New York County) . .. . Dal6 6 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 201-209East33'dStreetAssoc.v.Luciano,N.Y.L.J.,12/6/95,p.33,col.2 (CivilCourt,NewYorkCounty)........................... 10,Dal7 VillageofWoodridgev.Proyect,18Misc.2d623,189N.Y.S.2d258 CountyCourt,SullivanCounty,1959)..................... 10,Dal8 Statutes CPLR3211(a)(2),(8).......................................... Dal5 CPLR5015(a)(1),(3),(4).. . ......................... . ........... Da02,Da14 RPAPLArticle7............................................... Dal5 RPAPL711(2)................................................ Dal5 RPAPL735................................................... Dal5,Dal6 RPAPL735(1)(a),(b)............................................ Dal5 RPAPL741(3)................................................. 10,Dal7 RPAPL853................................................... 10,Dal9 Treatisesa 14Carmody-Wait,NewYorkPractice................................. Dal8 38C.J.S.,Guaranty,p.1130.......................................... 8,Dal7 38AC.J.S.,Guaranty§2(2019ThomsonReuters) ....................... 8 DanielFinkelstein&LucasA.Ferrara,LANDLORD ANDTENANTPRACTICE IN NEWYORK§14:303(2002ThomsonWest&2004Supp.).......... Dal9 IN.Y.JUR.2DActions§45(2019ThomsonReuters).................... 7 90N.Y.JUR. 2DRealProperty-PossessoryActions§183 (2019ThomsonReuters).............................. ....... 9 vi 7 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 PRELIMINARY STATEMENT On February 23, 2019-tomorrow-the plaintiff will have locked defendants out of 711 Second Avenue, New York, New York exactly nine years ago on February 23, 2010. (Da92). This action, commenced in or about September 2011, see Plaintiff's Pre-Trial Memorandum of Law ("Pl. Memo") at page 4, is now about 7.5 years old. But what, in essence, is this case about? As stated below, the case is supposedly a suit brought on the alleged personal guaranty of Ian Cheng ("Cheng"), guaranteeing performance of the alleged September 1, 2009 lease between BLDG ABI Enterprises, LLC and 711 Second Avenue Inc., the latter of which is erroneously set forth in the lease with the name 711 Second Ave Corp. (Da71) (lease), (Da90) (limited guaranty). While plaintiff claims itis currently suing the corporate defendant as well as Cheng, the corporate defendant was dissolved during the four (4) years when this case remained dormant, as defendants believed plaintiff had abandoned the case in 2014. (Dal l6). Plaintiff alleges that corporate lease" defendant "breached the and Mr. Cheng is therefore liable on the guaranty for rent and other claims. (Da40). Defendants claim because: (1) they were locked out, (2) plaintiff had three months' security in its possession at lockout; and (3) plaintiff used fraud to obtain a judgment of possession, there is no liability, but plaintiff may be liable for damages. In addition, it isargued that this matter is barred by the fraud and res judicata due to the Civil Court summary proceeding. Trial is set at this point for March 8, 2019 by Order of Hon. Joel M. Cohen, J.S.C. At the pre-trial conference in September 2018, the parties agreed that the matter, originally a hardcopy, non-NYSCEF case, would be converted to an NYSCEF case. A stipulation was signed by the undersigned, an NYSCEF participant, and Mr. Lawrence Wolf, Esq., a non-NYSCEF participant, (Da142).1 as Mr. Wolf is the attorney of record. Upon execution of the Stipulation, Mr. Robert 1Mr. Wolf remains a non-NYSCEF filerto date. Mr. Robert Moraco, Esq. of Livoti, Bernstein & Moraco, P.C. isappearing of counsel forMr. Wolf. No Notice of Appearance or Consent to Change Attorneys has 1 8 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 Moraco, Esq., of counsel to Mr. Wolf had the Court so-order the Stipulation. (Da144). Mr. Moraco then submitted the Stipulation to the County Clerk, but apparently the e-mail address of the undersigned had been mistyped. (mer4law@yahoo.com not mrc4law@ yahoo_.con) (Da145). (At the time, the undersigned was preparing to leave the county for Ireland and may not have seen the Mr. Moraco's e-mail.) When the NYSCEF filing was set up, at firstno confirmations were received by either side. (Dal43). This led to later confusion for defendants, as the undersigned, while having this case tracked on eTrack since 2016, received no confirmations or service of any documents from 09/28/2018 until 01/30/2019, when the undersigned filed a Notice of Appearance to cure the anomaly. See NYSCEF Doc. 25. Counsel had believed that the case had stalled again and that the 02/06/2019 trial date would be a status conference, as this happened several times. The result was a 02/01/2019 adjournment request, which the Court granted reluctantly. Opposing counsel claimed that the original record would be entered in the NYSCEF, upon conversion. Instead, what has happened, is a mere two pages of minutes appear on the NYSCEF system that indicate the underlying record is devoid of motion papers or ancillary records of any kind. NYSCEF #110703/2011 Doc. 2 (two pages, no real record). Review of the record in the New York County Clerk revealed the entire record is there: two large files of allthe documents, including the appellate appendix from the 2014 appeal (which contains the record through 2014). As a result, objection was made to plaintiff's attempt to submit court exhibits that were not taken from the original record. Itappears that plaintiff has been preparing the case since October 2018. Be that as all the above may, defendants are attempting to comply with the Court's Order that trial occur on March 8, 2019. In the interim, defendants have also filed and served a 02/14/2019 Order to Show Cause in the underlying L&T case, BLDG ABI Enterprises, LLC v. been filed,so it appears Mr. Wolf isstill primary counsel. Mr. Wolf isan officer of the plaintiff.Defendants conditioned consent to e-filingto the parties complying with 22 NYCRR § 202.5-b(b)(2) et seq. (Dal 42). 2 9 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 711 Second Ave Coro. Ian Cheng, LT-60290-10/NY, in the Civil Court, in which plaintiff sued both the corporate and individual defendants as tenants, obtaining a default judgment based in fraud, on May 24, 2010, returnable 02/26/2019 (Da02) et seq., (Da20) (judgment). Procedural History Prior to this case, and unbeknownst to defendants, who were never served in accordance with the lease with either a notice of cure, rent demand or court papers, there was a default judgment of possession, but no money judgment, in the Civil Court case cited above. See (Dal) (execution of warrant 06/17/2010) and (Da2) (order to show cause to vacate default/dismiss). In the following year, plaintiff commenced this case. Pl. Memo at 4. Except for some 2013" erroneous dates (e.g., counsel states the first decision of Justice Mills was dated "May 11, "Pleadings" History" instead of "05/11/12"), defendants generally agree with the and "Procedural 4-6.2 sections of plaintiff's memorandum as to facts only. Pl. Memo at From the Fall of 2014 to mid-2016, nothing happened on the case, and, theoretically it 3 could have been dismissed for neglect to prosecute In 2016, Hon. David Cohen, J.S.C. who had apparently ended up with the case, issued an Order, requiring a mandatory appearance on 06/10/2016, upon pain of dismissal. Only defendants appeared. Apparently, Mr. Wolf contacted the Court and, at the appearance, Justice Cohen recused himself on account of Mr. Wolf. Thus, due to this recusal, and in spite of the failure to appear, the case was not dismissed on 06/10/2016. 2There are some quality control issues, in the form of a few erroneous dates fairlyeasy to spot. One issue isthat Justice Mills's 05/11/12 Decision & Order submitted by plaintiff as a court exhibit is missing page 8 of said decision. See (Da59), (Da67) (missing page); see also NYSCEF Doc. 14 (as filed). As stated above, objection was made to plaintiff's exhibits as not being derived from record in the County Clerk. 3 In late 2014-early 2015, the undersigned was exposed to some kind of toxin and became 95% blind in the lefteye, 65% blind inthe right, requiring surgeries in 2015 to restore sight. During this period many of the records for this case were placed in storage and have not yet been located. 3 10 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 The case again remained dormant, until a conference was abruptly called by Justice Robert Reed in mid-2017. At this conference, Mr. Moraco appeared (who could also have appeared in 2016), and requested leave to file a Note of Issue, which was granted. The anomalous Note of Issue was then filed by Mr. Wolf-not Mr. Moraco-that contains numerous irregularities. The record shows the Note of Issue was filed. NYSCEF Doc. 21. However, the document that appears on the NYSCEF does not contain a filed stamp by the Clerk, nor proof a calendar fee was paid. Prior to this case proceeding further, plaintiff must produce this proof of filing and payment. In 2018, a settlement conference was called by the supervising judge and the case was transferred to Hon. Joel M. Cohen, J.S.C. Statement of Facts In or about June-July 2009, Cheng saw what appeared to be a storefront vacancy at the street level for the building with the address of 711 Second Avenue. (Da05). He formed a corporation, 711 Second Avenue Inc. (the landlord never checked to confirm the name of the company), and a lease was signed September 1, 2009. Later, during Supreme Court litigation, Cheng noted the personal guaranty was dated for July 1, 2009. He recalled receiving a lease draft prior to the lease signing on September 1, 2009, but not itsdate (petitioner argued it was dated 07/01/2009). During the Supreme Court case, Cheng realized there may have been more than one restaurant." lease version. (Da75, Da76). The sole purpose for the rental was for a "Japanese It was represented to Cheng by a broker who communicated with the landlord and by restaurant," landlord's agents that the premises were supposedly suitable for a "Japanese takeout on the order of a "Teriyaki Boy"-style takeout business. The premises consisted of "a retail store basement," plus a as recited in the lease. (Da71). The basement was immediately under the store. 11 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 The Notice of Petition and Petition in the L&T case, LT-60290-10/NY, refers to the address ST-2," as "711 Second Avenue Unit (Da27), but those were not the premises rented. What was basement" rented was a firstfloor storefront, "retail store plus a (no serial number). At one point, Cheng was shown what were supposed to be kitchen ventilation ducts on the walls and was taken to the roof by the super to be shown a ventilation outlet supposedly used for commercial cooking. (Da05). (The super had keys to the building and premises.) When the lease was signed, defendants tendered one month's rent and a three-month security deposit, as they believed they could viably operate a Japanese takeout place (e.g. "Teriyaki Boy"). There was a three-month rent concession to build out the restaurant. The firstrent was due 12/01/2009, which had been paid at lease signing. Id. No keys were actually supplied to defendants: the super and the broker retained the keys. Defendant hired an architect who told them: (a) the Building premises had no Certificate of Occupancy and (b) the premises were unsuitable for the use intended-no restaurant. Id. By this point, it was already December 2009 and the three-month rent concession had expired, plus the first month paid in advance had been applied. (Da06). In January 2010, defendants requested that the landlord provide them with an additional rent concession, so defendants could correct deficiencies to operate the premises as a restaurant, as their plans for renovation were rejected on 01/21/2010. (Da93). The management company refused (defendants dealt with a management company, which had a name similar to that of plaintiff (BLDG Management Co., Inc.). (Da06). It is important to emphasize that neither corporate defendant, Cheng nor any employee actually occupied the physical space. The broker had kept the key and the architect was given access to draw up plans and to attempt to obtain approvals, but neither 711 Second Avenue Inc., 5 12 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 nor any of its equipment and employees, nor any of my employees, nor Cheng, had occupied the space. They were waiting for Buildings approvals to move in. I_d. The_February 23, 2010 Lockout On February 23, 2010, in response to continued dialogue over the request for an extended rent concession, and a 02/23/2010 fax requesting a rent abatement, plaintiff's agents changed the locks and locked out the defendants. See id, (Da94), (Da95), (Da47) (Notice to Admit, ¶¶ 17-20, plaintiff, in sum and substance, admits defendants no longer had access as of 02/23/2010). The "emergency" claim there was an was a pretext, as the super had duplicate keys to the premises. defendants' As stated above, no member of company, whose name is misalleged in the L&T court papers as 711 Second Ave. Corp. along with Cheng, sued as tenant, occupied the respondent-tenant," premises. (Da24, Da27). In the Petition, itstates Cheng was "a but in Supreme Court documents plaintiff alleges that Cheng was only a guarantor. Compare (Da23 et al.) with (Da40 et al.) In any event, defendants never took possession, in form of equipment, employees, emergency," anything, and were locked out 02/23/2010, allegedly because there was a "Con Ed although the super, plaintiff's alleged employee, clearly had a set of duplicate keys because Cheng saw him with the keys when the super showed Cheng the roof chimney. The defendants as respondents were never served a Notice to Cure under the lease, a Three-Day Notice, nor the Notice of Petition and Petition, as plaintiff ignored Paragraph 70 of the lease. (Da87). Argument Point I Res Judicata and Plaintiff's Blatant Fraud in Civil Court Are Bars to this Action Mr. Moraco correctly argues that this matter is barred by the Civil Court summary proceeding on the basis of, more or less, res judicata, or other theories-but for reasons that are 6 13 of 166 FILED: NEW YORK COUNTY CLERK 02/22/2019 03:30 PM INDEX NO. 110703/2011 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/22/2019 opposite to the reasons that defendants raise herein. See Pl. Memo at 9. At the time Mr. Moraco had written his memorandum, defendants had not yet filed their Order to Show Cause. (Da02). Mr. Moraco