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Defense Claims Plaintiff’s Case is Frivolous


A New York Family Lawyer said that, plaintiff seeks an order 1) granting Plaintiff leave of Court to voluntarily discontinue the Instant Action without prejudice; or, alternatively, 2) consolidating this action with the Kings County Action; 3) determining the appropriate venue in which these two actions should be litigated; and 4) granting certain injunctive relief.

A New York Custody Lawyer said that, defendants oppose Plaintiff’s motion and cross move for an Order awarding sanctions against Plaintiff and his counsel for their allegedly frivolous conduct in filing this motion. The Amended Verified Complaint (“Complaint”) in this action, filed June 12, 2009, describes this case as an action arising as a result of Defendant breaches of his agreements with Plaintiff regarding the operation of a corporation. Plaintiff has sued 1) in his individual capacity to recover sums representing his capital contributions, plus interest, 2) for monetary damages arising from plaintiff’s allegedly fraudulent misrepresentations and breaches of his fiduciary duties as the corporation’s member-manager, 3) for declaratory relief recognizing that the corporation is the owner of the disputed property (“Property”) located at 500 4th Avenue, Brooklyn, New York, and 4) for the imposition of a constructive trust on the proceeds from sales of the Property or any part thereof. The Court has conducted numerous conferences in this matter.

A Suffolk County Family Lawyer said that, by Verified Complaint, Plaintiff, individually and as a member of the corporation, filed the Kings County Action. In the Kings County Complaint, he alleges, inter alia, that defendant fraudulently diverted funds related to the corporation and the Property and seeks injunctive relief. On August 6, 2010, counsel for the parties appeared before the Justice assigned to the Kings County Action in connection with an application for a temporary restraining order in the Kings County Action and Defendants’ counsel has provided a transcript of those proceedings. The Assigned Justice in the Kings County Action concluded that it was inappropriate for her to address the application before her in light of the pending action before this Court, stating that “the order to show cause is declined because another action is pending for the same relief in Nassau County”.

A Suffolk County Custody Lawyer said that, plaintiff affirms that Nassau County was selected as the original venue for this matter as an accommodation to Plaintiff’s prior counsel whose office was located in Nassau County. Plaintiff submits that, notwithstanding that initial selection, Kings County is the most appropriate forum in which to litigate this matter for reasons including 1) the Instant Action solely involves Brooklyn properties and Brooklyn business properties; 2) deposition and document production will likely take place in the Brooklyn or Manhattan offices of counsel; 3) Plaintiff resides in kings County; and 4) the Nassau County defendants will suffer no prejudice if the Court grants Plaintiff’s motion to discontinue.

Defendants oppose Plaintiff’s motion, characterizing it as a “blatant effort to engage in ‘judge shopping'”. Defendants note the comments of the Justice in the Kings County Action, discussed who refused to sign Plaintiff’s Order to Show Cause in the Kings County action based on her conclusion that the application should be made in Nassau County, where the Instant Action has been pending for over a year. Defendants note, further, that the Court in the Instant Action has conducted conferences regarding and considered motions filed in the Instant Action. Defendants also ask the Court to impose sanctions against Plaintiff and his counsel for filing the instant motion, in light of the statements of the Justice in the Kings County action suggesting that Nassau County is the more appropriate forum for this matter, and in light of the extensive involvement by the Court and counsel in the Instant Action.

The issue in this case is whether plaintiff’s complaint is frivolous.

CPLR § 602(a) permits consolidation “when actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial or any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” CPLR § 602(b) provides, inter alia, that where an action is pending in the supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court.

Consolidation or a joint trial should be ordered when the actions involve common questions of law and fact so as to avoid unnecessary duplication of trials, save unnecessary costs and to avoid the possibility of inconsistent decisions based upon the same facts. A motion to consolidation rests in the sound discretion of the trial court. The party seeking consolidation must establish the existence of common questions of law or fact. Once the movant has established the existence of common questions of law or fact, the party opposing consolidation must demonstrate that it will suffer prejudice to a substantial right if consolidation is granted. Absent that showing, consolidation should be granted if the movant meets its burden.

22 NYCRR § 13 0-1.1(a) authorizes the court, in its discretion, to award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct. Section 130-l.l(c) provides that conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.

The Court concludes that, given Plaintiff’s selection of the venue of Nassau County when filing the Instant Action, the common questions of law and fact in the Instant and Kings County Actions, and the Court’s extensive involvement in the Instant Action, consolidation of the Instant Action and the Kings County Action is appropriate. Accordingly, the Court grants Plaintiff’s motion for consolidation of the Instant and Kings County Actions, and directs that the Kings County Action be transferred to Nassau County, where the Court will assume responsibility for both matters.

The Court denies Plaintiff’s motion for injunctive relief, subject to renewal upon the consolidation of these matters and the Nassau County Clerk’s receipt of the file in the Kings County Action.

The Court denies Defendants’ motion for sanctions in light of the Court’s conclusion that Plaintiff’s motion is not baseless, notwithstanding the Court’s denial of that motion.

Accordingly, the court held that the pending Kings County matter is hereby consolidated with the above-captioned action; and it is further ordered that the pending Kings County matter described in the preceding paragraph is transferred to Nassau County for all purposes; and it is further ordered that counsel for Plaintiff shall serve a copy of this Order upon the Kings County Clerk within ten (10) days of the date of this Order; and it is further ordered that upon receipt of a copy of this Order, the Kings County Clerk shall transfer its file to the Nassau County Clerk forthwith.

All matters not decided herein are hereby denied. This constitutes the decision and order of the Court. The Court reminds counsel for the parties of their required appearance before the Court on October 26, 2010 at 9:30 a.m.

If you are in the same scenario in the case at bar, you will need the help of a Kings Order of Protection Attorney and Kings Family Attorney at Stephen Bilkis and Associates. Call us now.

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