Preview
FILED: SARATOGA COUNTY CLERK 05/28/2021 02:05 PM INDEX NO. 20162946
NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 05/28/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF SARATOGA
WEN MEI LU, CHIN CHUNG LIN LU,
LI HUA LU AND LU HOLDING, LLC
Plaintiffs, Index No: 2016-2946
RJI No.: 45-1-2016-1480
-against-
WEN YING GAMBA, YUEN HSIANG LU,
and WEN FULU
Defendants.
Attorney Affirmation in Support of
Defendants' Motion in Limine
STATE OF NEW YORK }
}ss.:
COUNTY OF ALBANY }
TIMOTHY S. BRENNAN, ESQ., being duly sworn, deposes and states:
1. I am an attorney duly licensed to practice in the Courts of the State of New York
and am a partner with the law firm of Phelan, Phelan & Danek, LLP, attorneys for defendants. As
such, I am familiar with facts and circumstances stated herein, based upon a review of the file
maintained by my office.
2. I submit this affirmation in support of defendants' motion in limine.
3. The following exhibits are submitted in support of this motion:
Exhibit A: 1997 Settlement Agreement;
Exhibit B: General Releases;
Exhibit C: Excerpts of Iris Lu EBT
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Exhibit D: Iris Lu MSJ Affidavit
Exhibit E: Iris Lu 2016 Affidavit
Exhibit F: Complaint
4, Plaintiffs commenced this action against their family asserting a variety of theories
all of which are targeted at obtaining ownership of two parcels of real property in Saratoga, and
one in Guilderland.
5. With trial of this matter approaching, defendants now move in limine seeking to
preclude plaintiff from offering certain evidence.
6. First, defendants seek preclusion of any testimony or evidence that seeks to
interpret a 1997 Settlement Agreement between various family members involving litigation in
Long Island commonly referred to as "Hither House".
7. Over the course of the present litigation, plaintiffs have offered testimony
suggesting that the Hither House property was deeded to defendant Wen Ying Gamba in exchange
for her agreement to never again seek ownership of the Saratoga Properties at issue.
8, As set forth in the accompanying memorandum of law, this testimony should be
precluded because it is inconsistent with the terms of the settlement agreement and should be
precluded as parol evidence.
9. The Settlement Agreement and subsequent releases are not ambiguous and,
therefore, such evidence is not admissible.
10. Moreover, plaintiffs should not be permitted to offer testimony in support of this
theory as has already been rejected by the Appellate Division, Third Department, and is therefore
res judicata.
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11. Next, it is respectfully submitted that plaintiffs should be precluded from offering
any testimony or evidence regarding defendants' relationship or future intentions with the tenant
Duo, at 175 Broadway.
12. As this Honorable Court may be aware, the tenant Duo currently operates a
restaurant at one of the properties.
13. In their complaint and subsequent testimony, plaintiffs have demonstrated that they
intend to engender sympathies of the jury by arguing that defendants would evict or harass Duo if
they prevail in this litigation [Exhibit, Complaint at 11262-292].
14. Specifically, in a series of allegations that have been echoed in subsequent
testimony, plaintiffs claim that, after the April 2015 conveyance at issue here, defendants "engaged
in a pattern of harassment against Duo, repeatedly threatening to have Duo evicted" [Exhibit,
Complaint at 1263].
15. All the alleged "harassment", "threats to evict" and other conduct post-date the
disputed April 2015 transaction [Exhibit, Complaint at 11262-292].
16. Moreover, testimony regarding these matters does not relate in any way to the
remaining claims in this litigation; to wit, constructive trust, conversion and unjust enrichment.
17. The alleged "harassment" and "threats" to the third party Duo simply have no
relevance, are collateral, and intended to prejudice defendants or engender sympathy in favor of
plaintiffs and Duo. As such, it is submitted that such evidence should be precluded.
18. For the reasons set forth more fully in the accompanying memorandum of law, it is
respectfully submitted that defendants' motion in limine should be granted.
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Conclusion
WHEREFORE, defendants respectfully request that this Honorable Court: (I) preclude
parol evidence regarding the 1997 Settlement; (2) preclude testimony that the 1997 Settlement
included an agreement not to obtain any future interest in the Saratoga Properties based upon res
judicata; (3) preclude any testimony or evidence related to the allegations contained in paragraphs
262-292 of the complaint; and (4) preclude any testimony or evidence regarding "bad acts"
allegedly perpetrated by defendants against the tenant Duo.
Dated: May 28, 2021
Albany, New York
Yours, etc.,
PHELAN, PHELAN & DANEK, LLP
TIMOTHY S. BRENNAN
Attorneys for Defendants
WEN YING GAMBA, YUEN
HSIANG LU and WEN FU LU
300 Great Oaks Blvd., Suite 315
Albany, New York 12203
(518) 640-6900
TO: Jon Crain, Esq.
Whiteman, Osterman & Hanna, LLP
One Commerce Plaza - 19 th Floor
99 Washington Avenue
Albany, New York 12260
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FILED: SARATOGA COUNTY CLERK 05/28/2021 02:05 PM INDEX NO. 20162946 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 05/28/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF SARATOGA WEN MEI LU, CHIN CHUNG LIN LU, LI HUA LU AND LU HOLDING, LLC Plaintiffs, Index No: 2016-2946 RJI No.: 45-1-2016-1480 -against- WEN YING GAMBA, YUEN HSIANG LU, and WEN FULU Defendants. Attorney Affirmation in Support of Defendants' Motion in Limine STATE OF NEW YORK } }ss.: COUNTY OF ALBANY } TIMOTHY S. BRENNAN, ESQ., being duly sworn, deposes and states: 1. I am an attorney duly licensed to practice in the Courts of the State of New York and am a partner with the law firm of Phelan, Phelan & Danek, LLP, attorneys for defendants. As such, I am familiar with facts and circumstances stated herein, based upon a review of the file maintained by my office. 2. I submit this affirmation in support of defendants' motion in limine. 3. The following exhibits are submitted in support of this motion: Exhibit A: 1997 Settlement Agreement; Exhibit B: General Releases; Exhibit C: Excerpts of Iris Lu EBT {A0542195.I) 1 of 4 FILED: SARATOGA COUNTY CLERK 05/28/2021 02:05 PM INDEX NO. 20162946 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 05/28/2021 Exhibit D: Iris Lu MSJ Affidavit Exhibit E: Iris Lu 2016 Affidavit Exhibit F: Complaint 4, Plaintiffs commenced this action against their family asserting a variety of theories all of which are targeted at obtaining ownership of two parcels of real property in Saratoga, and one in Guilderland. 5. With trial of this matter approaching, defendants now move in limine seeking to preclude plaintiff from offering certain evidence. 6. First, defendants seek preclusion of any testimony or evidence that seeks to interpret a 1997 Settlement Agreement between various family members involving litigation in Long Island commonly referred to as "Hither House". 7. Over the course of the present litigation, plaintiffs have offered testimony suggesting that the Hither House property was deeded to defendant Wen Ying Gamba in exchange for her agreement to never again seek ownership of the Saratoga Properties at issue. 8, As set forth in the accompanying memorandum of law, this testimony should be precluded because it is inconsistent with the terms of the settlement agreement and should be precluded as parol evidence. 9. The Settlement Agreement and subsequent releases are not ambiguous and, therefore, such evidence is not admissible. 10. Moreover, plaintiffs should not be permitted to offer testimony in support of this theory as has already been rejected by the Appellate Division, Third Department, and is therefore res judicata. {A0542195.I} 2 of 4 FILED: SARATOGA COUNTY CLERK 05/28/2021 02:05 PM INDEX NO. 20162946 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 05/28/2021 11. Next, it is respectfully submitted that plaintiffs should be precluded from offering any testimony or evidence regarding defendants' relationship or future intentions with the tenant Duo, at 175 Broadway. 12. As this Honorable Court may be aware, the tenant Duo currently operates a restaurant at one of the properties. 13. In their complaint and subsequent testimony, plaintiffs have demonstrated that they intend to engender sympathies of the jury by arguing that defendants would evict or harass Duo if they prevail in this litigation [Exhibit, Complaint at 11262-292]. 14. Specifically, in a series of allegations that have been echoed in subsequent testimony, plaintiffs claim that, after the April 2015 conveyance at issue here, defendants "engaged in a pattern of harassment against Duo, repeatedly threatening to have Duo evicted" [Exhibit, Complaint at 1263]. 15. All the alleged "harassment", "threats to evict" and other conduct post-date the disputed April 2015 transaction [Exhibit, Complaint at 11262-292]. 16. Moreover, testimony regarding these matters does not relate in any way to the remaining claims in this litigation; to wit, constructive trust, conversion and unjust enrichment. 17. The alleged "harassment" and "threats" to the third party Duo simply have no relevance, are collateral, and intended to prejudice defendants or engender sympathy in favor of plaintiffs and Duo. As such, it is submitted that such evidence should be precluded. 18. For the reasons set forth more fully in the accompanying memorandum of law, it is respectfully submitted that defendants' motion in limine should be granted. {A0542195,!) 3 of 4 FILED: SARATOGA COUNTY CLERK 05/28/2021 02:05 PM INDEX NO. 20162946 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 05/28/2021 Conclusion WHEREFORE, defendants respectfully request that this Honorable Court: (I) preclude parol evidence regarding the 1997 Settlement; (2) preclude testimony that the 1997 Settlement included an agreement not to obtain any future interest in the Saratoga Properties based upon res judicata; (3) preclude any testimony or evidence related to the allegations contained in paragraphs 262-292 of the complaint; and (4) preclude any testimony or evidence regarding "bad acts" allegedly perpetrated by defendants against the tenant Duo. Dated: May 28, 2021 Albany, New York Yours, etc., PHELAN, PHELAN & DANEK, LLP TIMOTHY S. BRENNAN Attorneys for Defendants WEN YING GAMBA, YUEN HSIANG LU and WEN FU LU 300 Great Oaks Blvd., Suite 315 Albany, New York 12203 (518) 640-6900 TO: Jon Crain, Esq. Whiteman, Osterman & Hanna, LLP One Commerce Plaza - 19 th Floor 99 Washington Avenue Albany, New York 12260 {A0542195.l} 4 of 4