Preview
FILED: NASSAU COUNTY CLERK 08/31/2020 05:35 PM INDEX NO. 606340/2020
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/31/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
CIG, LLC d/b/a ELEVATIONS SHORING LLC,
Plaintiff, ï
ï
– against – ï
ï Index No.: 606340/2020
ý
LIPSKY BUILDING CONSTRUCTION, INC., BARRY ï
LIPSKY, GOVERNOR’S OFFICE OF STORM RECOVERY, AFFIRMATION IN
HOUSING TRUST FUND CORP., YOLETTE LOYIS, SUPPORT OF
MICHAEL CERVERIZZO, ROBERT POPP, COLEEN ï MOTION TO DISMISS
POPP, RANDY TENNARIELLO, MARIE TENNARIELLO, ï
ï
and KEVIN O’CONNELL, ï
þ
Defendants.
PATRICIA ANN ROONEY, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following statement to be true under the
penalty of perjury:
1. I am a member of the firm of Patricia Rooney, P.C., attorneys of record for
defendants Lipsky Building Construction, Inc. and Barry Lipsky (collectively referred to herein as
“Moving Defendants”),1 and am fully familiar with the facts and circumstances set forth herein
based upon my review of the file maintained by my office concerning this matter and my handling
of the prior proceedings.
2. I submit this affidavit in support of Moving Defendants’ motion for an order,
pursuant to New York Civil Practice Law and Rules (“CPLR”) §§ 3211(a)(1) (documentary
evidence), 3211(a)(3) (lack of capacity), 3211(a)(5) (limitations), 3211(a)(7) (failure to state a
1
Unless otherwise indicated herein all capitalized terms have the meaning ascribed to them in the Affidavit of
Barry Lipsky (the “Lipsky Aff.”), sworn to on August 28, 2020 and submitted in support of this motion.
1 of 5
FILED: NASSAU COUNTY CLERK 08/31/2020 05:35 PM INDEX NO. 606340/2020
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/31/2020
claim) and 3211(a)(8) (lack of jurisdiction), dismissing those causes of action against the Moving
Defendants in the amended verified complaint of CIG, based upon documentary evidence, lack of
capacity, contractual and statutory limitations, failure to state a cause of action, and lack of
jurisdiction, together with such other and further relief as this Court may deem just and proper.
3. The purpose of this affirmation is two-fold. First, to place before the Court true
and correct copies of certain documentary evidence referred to in this Affirmation.2 As such,
annexed hereto are:
a. Exhibit “1,” a true and correct copy of a printout from the Louisiana
Secretary of State, dated August 17, 2020, evidencing that Plaintiff
CIG is a Louisiana limited liability company.
b. Exhibit “2,” a true and correct copy of the entity information for
Plaintiff CIG, dated August 17, 2020, evidencing that Plaintiff CIG
is a foreign LLC with offices located in Nassau County, New York.
4. Second, another purpose of this Affirmation is to provide the Court with additional
background facts and additional relevant legal arguments.
Additional Facts
5. On August 17, 2020, I engaged in a telephone conversation with a representative
of the New York State Division of Corporations (“NYSDOS”) to inquire as to whether CIG had
filed its certificate of publication and the affidavits of publication in the newspapers. I was
informed by the NYSDOS that they have no record that CIG filed any certificate of publication or
affidavits of publication with the NYDOS.
2
The exhibits annexed to this Affirmation will be designated by number in order not to confuse the Court with the
exhibits annexed to the Lipsky Aff.” which have been designated by letter. Unless otherwise indicated, all exhibits
are annexed to the Lipsky Aff. For a more detailed statement of facts relevant to this Motion, the Court is respectfully
referred to the Lipsky Aff.
2
2 of 5
FILED: NASSAU COUNTY CLERK 08/31/2020 05:35 PM INDEX NO. 606340/2020
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/31/2020
6. The representative then advised me to call the Nassau County Clerk’s Office (the
“Nassau County Clerk”) to make the same inquiry in the chance that perhaps CIG had erroneously
filed the required certificate of publication or affidavits of publication with the Nassau County
Clerk’s Office. I called the Nassau County Clerk’s Office that same day and I was informed by a
representative of that office that no such certificate of publication or affidavits of publication had
been filed with the Nassau County Clerk by CIG.
7. In addition, during that same phone conversation with the Nassau County Clerk, I
also asked the representative whether CIG had filed a DBA Certificate with the Nassau County
Clerk and I was informed that CIG had not.
The Instant Action
8. CIG commenced this 13-count action against Moving Defendants3 for breach of
contract (Cause of Action No. 1, Complaint ¶¶ 15-29), unjust enrichment / quantum meruit (Cause
of Action No. 2, Complaint ¶¶ 30-33) and to recover under Article 3A of the Lien Law (Cause of
Action No. 13, Complaint ¶¶ 109-122) on June 24, 2020. The Summons and Complaint were later
amended on July 16, 2020. See Ex. “A.”
9. In Cause of Action No. 1 and No. 2, CIG alleges that there is an outstanding balance
due to CIG of $216,622.15 which is due and owing from LBC and which, according to CIG, LBC
has refused to pay. See Compl. ¶¶ 15-33, Ex. “A.” According to CIG, this balance has been
allegedly due and owing “since at least August 18, 2018.” See Compl. ¶ 28, Ex. “A.”
10. Although CIG claims that the balance is due from LBC “since at least August 18,
3
CIG also included causes of action against defendants GOSR, HTFC and the owners of the five properties which
are the subject of this action.
3
3 of 5
FILED: NASSAU COUNTY CLERK 08/31/2020 05:35 PM INDEX NO. 606340/2020
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/31/2020
18,” see Compl. ¶ 28, Ex. “A,” CIG submitted 5 proof of claim forms to Berkley (1 proof of claim
form for each individual Project site) (the “Proofs of Claim”) swearing that the last date CIG
performed work in connection with the Project was at the earliest June 8, 2017 and, at the latest,
August 19, 2018. See Proofs of Claim, dated January 10, 2020, Exs. “C,” “D,” “E,” “F” and “G.”
11. In Cause of Action No. 13, CIG seeks to recover against Moving Defendants
pursuant to Article 3A of the Lien Law. See Compl. ¶¶ 109-122, Ex. “A.” In this Cause of Action,
CIG seeks the same $216,622.15 balance that it sought in the first two causes of action, plus an
additional $500,000.00 in punitive damages against Moving Defendants
Legal Argument
12. CIG alleges in the Complaint that it is a foreign corporation, duly created, organized
and existing under and by virtue of the laws of the State of Louisiana, and authorized to do business
in New York. See Compl. ¶ 1, Ex. “A.” However, according to the Louisiana Secretary of State
and Plaintiff CIG’s application for authority to conduct business in New York, Plaintiff CIG is a
foreign limited liability company. See printouts from Louisiana Secretary of State and New York
Division of Corporations annexed hereto as Exs. “1” and “2.”
13. As such, CIG was required to comply with the New York LLC Law. Section 802
of the LLC Law requires a foreign LLC, such as CIG, to apply for authority to do business in New
York. See LLC Law § 802. Within 120 days after the foreign LLC applies, it must publish a copy
of its application for authority or a notice related to the qualification of the LLC in two newspapers.
See id. The newspapers must be designated by the county clerk of the county in which the office
of the LLC is located. See id. Proof of the publication, consisting of a certificate of publication
and affidavits of the publications, must then be submitted to the New York State Department of
4
4 of 5
FILED: NASSAU COUNTY CLERK 08/31/2020 05:35 PM INDEX NO. 606340/2020
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/31/2020
State, Division of Corporations. See id. Failure to file the required proof of publication results in
suspension of the foreign LLC's authority to carry on, conduct or transact any business in New
York. See id.
14. It isbeyond dispute that limited liability companies which fail to comply with the
publication requirement are barred from maintaining a court action. See Barklee Realty Co. LLC
v. Pataki, 309 A.D. 2d 310, 765 N.Y.S.2d 599 (l stDep't 2003); see also Small Step Day Care,
LLC v. Broadway Bushwick Bldrs., L.P., 137 A.D.3d 1102, 1103, 26 N.Y.S.3d 872, 873 (2d Dep't
2016) (holding that since plaintiff LLC failed to comply with publication requirements, plaintiff
LLC was precluded from bringing action); Intelligent Tech. & Design v. NY Renaissance, 2019
NYLJ LEXIS 2811 (Sup. Ct. New York Co., Aug. 8, 2019) (holding that, although plaintiff
established itdoes business in New York, because plaintiff failed to comply with Section 802 of
the LLC Law, plaintiff lacked capacity to bring action and granting motion to dismiss).
Conclusion
15. Accordingly, because CIG failed to file the necessary certificate of publication and
affidavits with the NYSDOS, see paragraphs ¶¶ 4-6 above, this Court should find that CIG is
barred from bringing this action against the Moving Defendants and dismiss the Complaint as
against the Moving Defendants. See Small Step Day Care, 137 A.D.2d at 1103, 26 N.Y.S.3d at
873.
Dated: Lindenhurst, New York
August 31, 2020
Patricia A. Rooney
(Patricia Rooney, PC)/Patricia Rooney, PC Tearn Folder/2020 01 08 PRLAW
/Users/prlaw/Dropbox Q DRIVE/q (KRT017)/!!PRPC/1009-
37/Motion/2020
08 28 Rooney Affidavit
in Support.docx
5
5 of 5
Preview
FILED: NASSAU COUNTY CLERK 08/31/2020 05:35 PM INDEX NO. 606340/2020 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/31/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU CIG, LLC d/b/a ELEVATIONS SHORING LLC, Plaintiff, ï ï – against – ï ï Index No.: 606340/2020 ý LIPSKY BUILDING CONSTRUCTION, INC., BARRY ï LIPSKY, GOVERNOR’S OFFICE OF STORM RECOVERY, AFFIRMATION IN HOUSING TRUST FUND CORP., YOLETTE LOYIS, SUPPORT OF MICHAEL CERVERIZZO, ROBERT POPP, COLEEN ï MOTION TO DISMISS POPP, RANDY TENNARIELLO, MARIE TENNARIELLO, ï ï and KEVIN O’CONNELL, ï þ Defendants. PATRICIA ANN ROONEY, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following statement to be true under the penalty of perjury: 1. I am a member of the firm of Patricia Rooney, P.C., attorneys of record for defendants Lipsky Building Construction, Inc. and Barry Lipsky (collectively referred to herein as “Moving Defendants”),1 and am fully familiar with the facts and circumstances set forth herein based upon my review of the file maintained by my office concerning this matter and my handling of the prior proceedings. 2. I submit this affidavit in support of Moving Defendants’ motion for an order, pursuant to New York Civil Practice Law and Rules (“CPLR”) §§ 3211(a)(1) (documentary evidence), 3211(a)(3) (lack of capacity), 3211(a)(5) (limitations), 3211(a)(7) (failure to state a 1 Unless otherwise indicated herein all capitalized terms have the meaning ascribed to them in the Affidavit of Barry Lipsky (the “Lipsky Aff.”), sworn to on August 28, 2020 and submitted in support of this motion. 1 of 5 FILED: NASSAU COUNTY CLERK 08/31/2020 05:35 PM INDEX NO. 606340/2020 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/31/2020 claim) and 3211(a)(8) (lack of jurisdiction), dismissing those causes of action against the Moving Defendants in the amended verified complaint of CIG, based upon documentary evidence, lack of capacity, contractual and statutory limitations, failure to state a cause of action, and lack of jurisdiction, together with such other and further relief as this Court may deem just and proper. 3. The purpose of this affirmation is two-fold. First, to place before the Court true and correct copies of certain documentary evidence referred to in this Affirmation.2 As such, annexed hereto are: a. Exhibit “1,” a true and correct copy of a printout from the Louisiana Secretary of State, dated August 17, 2020, evidencing that Plaintiff CIG is a Louisiana limited liability company. b. Exhibit “2,” a true and correct copy of the entity information for Plaintiff CIG, dated August 17, 2020, evidencing that Plaintiff CIG is a foreign LLC with offices located in Nassau County, New York. 4. Second, another purpose of this Affirmation is to provide the Court with additional background facts and additional relevant legal arguments. Additional Facts 5. On August 17, 2020, I engaged in a telephone conversation with a representative of the New York State Division of Corporations (“NYSDOS”) to inquire as to whether CIG had filed its certificate of publication and the affidavits of publication in the newspapers. I was informed by the NYSDOS that they have no record that CIG filed any certificate of publication or affidavits of publication with the NYDOS. 2 The exhibits annexed to this Affirmation will be designated by number in order not to confuse the Court with the exhibits annexed to the Lipsky Aff.” which have been designated by letter. Unless otherwise indicated, all exhibits are annexed to the Lipsky Aff. For a more detailed statement of facts relevant to this Motion, the Court is respectfully referred to the Lipsky Aff. 2 2 of 5 FILED: NASSAU COUNTY CLERK 08/31/2020 05:35 PM INDEX NO. 606340/2020 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/31/2020 6. The representative then advised me to call the Nassau County Clerk’s Office (the “Nassau County Clerk”) to make the same inquiry in the chance that perhaps CIG had erroneously filed the required certificate of publication or affidavits of publication with the Nassau County Clerk’s Office. I called the Nassau County Clerk’s Office that same day and I was informed by a representative of that office that no such certificate of publication or affidavits of publication had been filed with the Nassau County Clerk by CIG. 7. In addition, during that same phone conversation with the Nassau County Clerk, I also asked the representative whether CIG had filed a DBA Certificate with the Nassau County Clerk and I was informed that CIG had not. The Instant Action 8. CIG commenced this 13-count action against Moving Defendants3 for breach of contract (Cause of Action No. 1, Complaint ¶¶ 15-29), unjust enrichment / quantum meruit (Cause of Action No. 2, Complaint ¶¶ 30-33) and to recover under Article 3A of the Lien Law (Cause of Action No. 13, Complaint ¶¶ 109-122) on June 24, 2020. The Summons and Complaint were later amended on July 16, 2020. See Ex. “A.” 9. In Cause of Action No. 1 and No. 2, CIG alleges that there is an outstanding balance due to CIG of $216,622.15 which is due and owing from LBC and which, according to CIG, LBC has refused to pay. See Compl. ¶¶ 15-33, Ex. “A.” According to CIG, this balance has been allegedly due and owing “since at least August 18, 2018.” See Compl. ¶ 28, Ex. “A.” 10. Although CIG claims that the balance is due from LBC “since at least August 18, 3 CIG also included causes of action against defendants GOSR, HTFC and the owners of the five properties which are the subject of this action. 3 3 of 5 FILED: NASSAU COUNTY CLERK 08/31/2020 05:35 PM INDEX NO. 606340/2020 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/31/2020 18,” see Compl. ¶ 28, Ex. “A,” CIG submitted 5 proof of claim forms to Berkley (1 proof of claim form for each individual Project site) (the “Proofs of Claim”) swearing that the last date CIG performed work in connection with the Project was at the earliest June 8, 2017 and, at the latest, August 19, 2018. See Proofs of Claim, dated January 10, 2020, Exs. “C,” “D,” “E,” “F” and “G.” 11. In Cause of Action No. 13, CIG seeks to recover against Moving Defendants pursuant to Article 3A of the Lien Law. See Compl. ¶¶ 109-122, Ex. “A.” In this Cause of Action, CIG seeks the same $216,622.15 balance that it sought in the first two causes of action, plus an additional $500,000.00 in punitive damages against Moving Defendants Legal Argument 12. CIG alleges in the Complaint that it is a foreign corporation, duly created, organized and existing under and by virtue of the laws of the State of Louisiana, and authorized to do business in New York. See Compl. ¶ 1, Ex. “A.” However, according to the Louisiana Secretary of State and Plaintiff CIG’s application for authority to conduct business in New York, Plaintiff CIG is a foreign limited liability company. See printouts from Louisiana Secretary of State and New York Division of Corporations annexed hereto as Exs. “1” and “2.” 13. As such, CIG was required to comply with the New York LLC Law. Section 802 of the LLC Law requires a foreign LLC, such as CIG, to apply for authority to do business in New York. See LLC Law § 802. Within 120 days after the foreign LLC applies, it must publish a copy of its application for authority or a notice related to the qualification of the LLC in two newspapers. See id. The newspapers must be designated by the county clerk of the county in which the office of the LLC is located. See id. Proof of the publication, consisting of a certificate of publication and affidavits of the publications, must then be submitted to the New York State Department of 4 4 of 5 FILED: NASSAU COUNTY CLERK 08/31/2020 05:35 PM INDEX NO. 606340/2020 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/31/2020 State, Division of Corporations. See id. Failure to file the required proof of publication results in suspension of the foreign LLC's authority to carry on, conduct or transact any business in New York. See id. 14. It isbeyond dispute that limited liability companies which fail to comply with the publication requirement are barred from maintaining a court action. See Barklee Realty Co. LLC v. Pataki, 309 A.D. 2d 310, 765 N.Y.S.2d 599 (l stDep't 2003); see also Small Step Day Care, LLC v. Broadway Bushwick Bldrs., L.P., 137 A.D.3d 1102, 1103, 26 N.Y.S.3d 872, 873 (2d Dep't 2016) (holding that since plaintiff LLC failed to comply with publication requirements, plaintiff LLC was precluded from bringing action); Intelligent Tech. & Design v. NY Renaissance, 2019 NYLJ LEXIS 2811 (Sup. Ct. New York Co., Aug. 8, 2019) (holding that, although plaintiff established itdoes business in New York, because plaintiff failed to comply with Section 802 of the LLC Law, plaintiff lacked capacity to bring action and granting motion to dismiss). Conclusion 15. Accordingly, because CIG failed to file the necessary certificate of publication and affidavits with the NYSDOS, see paragraphs ¶¶ 4-6 above, this Court should find that CIG is barred from bringing this action against the Moving Defendants and dismiss the Complaint as against the Moving Defendants. See Small Step Day Care, 137 A.D.2d at 1103, 26 N.Y.S.3d at 873. Dated: Lindenhurst, New York August 31, 2020 Patricia A. Rooney (Patricia Rooney, PC)/Patricia Rooney, PC Tearn Folder/2020 01 08 PRLAW /Users/prlaw/Dropbox Q DRIVE/q (KRT017)/!!PRPC/1009- 37/Motion/2020 08 28 Rooney Affidavit in Support.docx 5 5 of 5