Preview
FILED: NEW YORK COUNTY CLERK 10/12/2017 04:20 PM INDEX NO. 160102/2016
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/12/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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INTEGRATED PROJECT DELIVERY PARTNERS,
INC., Index No.: 160102/2016
Plaintiff, AFFIRMATION IN
OPPOSITION TO
-against- DEFENDANTS’
MOTION TO DISMISS
SUSAN L. SCHUMAN FAMILY TRUST, ILENE
OSHEROW, SUSAN SCHUMAN, and “JOHN DOE 1”
through “JOHN DOE 10,” said parties being lienors who
have yet to perfect their liens and being fictitious and
unknown to Plaintiff,
Defendants.
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HENRY CHAN, ESQ., an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the following statements to be true, under penalties of
perjury:
1. I am a member of WILSON & CHAN, LLP, attorneys for plaintiff Integrated Project
Delivery Partners, Inc. (“IPDP” or “plaintiff”), and am fully familiar with the facts and
circumstances set forth herein based upon my review of the file maintained by this office.
PRELIMINARY STATEMENT
2. This Affirmation is submitted in opposition to defendants Susan L Schuman
Family Trust (the “Trust”), Ilene Osherow (“Osherow”), and Susan Schuman’s (“Schuman”)
(collectively, the “defendants”) motion to dismiss pursuant to CPLR § 3211(a)(1) and (a)(7)
dismissing plaintiff’s Fourth Causes of Action. Plaintiff does not oppose defendants’ motion as
to the Second and Third Causes of Action. Defendants’ motion should be denied as to the Fourth
Cause of Action because:
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(a) Pursuant to Liberty Management & Const. Ltd. V. 417 Park Ave.
Corp., New York County Supreme Court, New York County, Index
No. 151800/2015 (November 14, 2016), where, as here, the possession
of documents necessary to prosecute the claim of violation of
constructive trust funds have not yet been discovered as no discovery
has taken place, the defendants’ motion to dismiss the fourth cause of
action must be denied as premature.
RELEVANT PROCEDURAL HISTORY
3. Plaintiff respectfully refers the Court to the relevant procedural history in the
defendants’ Affirmation in Support of Motion to Dismiss.
4. To date, as defendants’ motion to dismiss, discovery demands have been
exchanged, but at this time, no discovery has been exchanged and no depositions have occurred.
ARGUMENTS
POINT I
LEGAL STANDARD FOR MOTION TO DISMISS UNDER
CPLR 3211(A)(1) AND (A)(7)
5. For purposes of this motion, the allegations of the Complaint are to be deemed
true and accord plaintiff “every favorable inference,” except insofar as they “consist of bare legal
conclusions” or are “inherently incredible or flatly contradicted by documentary evidence.”
Beattie v. Brown & Wood, 243 A.D.2d 395, 395 (1st Dep’t 1997). “Dismissal pursuant to CPLR
3211(a)(1) is warranted only if the documentary evidence submitted conclusively establishes a
defense to the asserted claims as a matter of law.” Ladenburg Thalmann & Co. v. Tim’s
Amusements, Inc., 275 A.D.2d 243, 246 (1st Dep’t 2000). In opposing a CPLR 3211(a)(7)
motion dismiss for failure to state a claim, “affidavits may be used freely to preserve inartfully
pleaded, but potentially meritorious, claims.” Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635
(1976). When a CPLR § 3211(a)(7) motion has not been converted to a motion for summary
judgment, however, “affidavits may be received for a limited purpose only, serving normally to
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remedy defects in the complaint.” Id. At 636. “[A]ffidavits submitted by the defendant will
seldom if ever warrant the relief he seeks unless the affidavits establish conclusively that plaintiff
has no cause of action.” Id. The court is to determine whether, accepting as true the factual
averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated.
Farmer v. Green Bus Lines, Inc., 254 A.D.2d 389, 390 (2d Dep’t 1988). The court “must take
the allegations asserted within a plaintiff's complaint as true and accord plaintiff the benefit of
every possible inference, determining only whether the facts as alleged fit within any cognizable
legal theory.” Samiento v. World Yacht Inc., 10 N.Y.3d 70, 79 (2008).
6. In our case, it is clear that plaintiff has presented the necessary elements for a
cognizable cause of action for its Fourth Causes of Action, giving plaintiff’s Complaint a liberal
construction and the benefit of every possible favorable inference.
POINT II
DEFENDANTS’ MOTION TO DISMISS THE CAUSE OF ACTION FOR
VIOLATION OF CONSTRUCTIVE TRUST FUNDS MUST BE DENIED
AS PREMATURE
7. With regard to plaintiff’s cause of action for violation of constructive trust funds
against the defendants, where, as here, the possession of documents necessary to prosecute the
this claim have not yet been discovered as no discovery has taken place, the defendants’ motion
to dismiss the fourth cause of action must be denied as premature. See Liberty Management &
Const. Ltd. V. 417 Park Ave. Corp., New York County Supreme Court, New York County,
Index No. 151800/2015 (November 14, 2016). A copy of Judge Eileen A. Rakower’s decision
dated November 14, 2016 is annexed hereto as Exhibit A.
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CONCLUSION
WHEREFORE, it is respectfully requested that: (1) the defendants’ motion to dismiss the
Fourth Cause of Action be denied in its entirety; (2) awarding plaintiff reasonable attorneys’
fees; and (3) together with such other, further and different relief as this Honorable Court deems
just, proper and equitable.
Dated: New York, New York
October 12, 2017
WILSON & CHAN, LLP
By:
Henry C. Chan, Esq.
Attorneys for Plaintiff
INTEGRATED PROJECT DELIVERY
PARTNERS, INC.
733 Third Avenue, 15th Floor
New York, New York 10017
Tel: (646) 790-5848
Fax: (646) 417-7879
hchan@wilsonchanlaw.com
Our File No.: 00450.00002
To:
Attn: Peter Moulinos, Esq.
MOULINOS & ASSOCIATES LLC
Attorneys for Defendants
150 East 58th Street, 25th Floor
New York, New York 10155
Tel: (212) 832-5981
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AFFIRMATION OF SERVICE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Henry Chan, Esq., being duly sworn deposes and says:
Deponent is not a party to the action, is over eighteen (18) years of age and
resides in New York County, New York.
On October 12, 2017, deponent served the within AFFIRMATION IN OPPOSITION
to the defendants’ attorneys via NYSCEF.
By: s/ Henry Chan
Henry Chan, Esq.
To:
Attn: Peter Moulinos, Esq.
MOULINOS & ASSOCIATES LLC
Attorneys for Defendants
150 East 58th Street, 25th Floor
New York, New York 10155
Tel: (212) 832-5981
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Preview
FILED: NEW YORK COUNTY CLERK 10/12/2017 04:20 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/12/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------x INTEGRATED PROJECT DELIVERY PARTNERS, INC., Index No.: 160102/2016 Plaintiff, AFFIRMATION IN OPPOSITION TO -against- DEFENDANTS’ MOTION TO DISMISS SUSAN L. SCHUMAN FAMILY TRUST, ILENE OSHEROW, SUSAN SCHUMAN, and “JOHN DOE 1” through “JOHN DOE 10,” said parties being lienors who have yet to perfect their liens and being fictitious and unknown to Plaintiff, Defendants. ----------------------------------------x HENRY CHAN, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following statements to be true, under penalties of perjury: 1. I am a member of WILSON & CHAN, LLP, attorneys for plaintiff Integrated Project Delivery Partners, Inc. (“IPDP” or “plaintiff”), and am fully familiar with the facts and circumstances set forth herein based upon my review of the file maintained by this office. PRELIMINARY STATEMENT 2. This Affirmation is submitted in opposition to defendants Susan L Schuman Family Trust (the “Trust”), Ilene Osherow (“Osherow”), and Susan Schuman’s (“Schuman”) (collectively, the “defendants”) motion to dismiss pursuant to CPLR § 3211(a)(1) and (a)(7) dismissing plaintiff’s Fourth Causes of Action. Plaintiff does not oppose defendants’ motion as to the Second and Third Causes of Action. Defendants’ motion should be denied as to the Fourth Cause of Action because: 1 of 5 FILED: NEW YORK COUNTY CLERK 10/12/2017 04:20 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/12/2017 (a) Pursuant to Liberty Management & Const. Ltd. V. 417 Park Ave. Corp., New York County Supreme Court, New York County, Index No. 151800/2015 (November 14, 2016), where, as here, the possession of documents necessary to prosecute the claim of violation of constructive trust funds have not yet been discovered as no discovery has taken place, the defendants’ motion to dismiss the fourth cause of action must be denied as premature. RELEVANT PROCEDURAL HISTORY 3. Plaintiff respectfully refers the Court to the relevant procedural history in the defendants’ Affirmation in Support of Motion to Dismiss. 4. To date, as defendants’ motion to dismiss, discovery demands have been exchanged, but at this time, no discovery has been exchanged and no depositions have occurred. ARGUMENTS POINT I LEGAL STANDARD FOR MOTION TO DISMISS UNDER CPLR 3211(A)(1) AND (A)(7) 5. For purposes of this motion, the allegations of the Complaint are to be deemed true and accord plaintiff “every favorable inference,” except insofar as they “consist of bare legal conclusions” or are “inherently incredible or flatly contradicted by documentary evidence.” Beattie v. Brown & Wood, 243 A.D.2d 395, 395 (1st Dep’t 1997). “Dismissal pursuant to CPLR 3211(a)(1) is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.” Ladenburg Thalmann & Co. v. Tim’s Amusements, Inc., 275 A.D.2d 243, 246 (1st Dep’t 2000). In opposing a CPLR 3211(a)(7) motion dismiss for failure to state a claim, “affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims.” Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635 (1976). When a CPLR § 3211(a)(7) motion has not been converted to a motion for summary judgment, however, “affidavits may be received for a limited purpose only, serving normally to 2 of 5 FILED: NEW YORK COUNTY CLERK 10/12/2017 04:20 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/12/2017 remedy defects in the complaint.” Id. At 636. “[A]ffidavits submitted by the defendant will seldom if ever warrant the relief he seeks unless the affidavits establish conclusively that plaintiff has no cause of action.” Id. The court is to determine whether, accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated. Farmer v. Green Bus Lines, Inc., 254 A.D.2d 389, 390 (2d Dep’t 1988). The court “must take the allegations asserted within a plaintiff's complaint as true and accord plaintiff the benefit of every possible inference, determining only whether the facts as alleged fit within any cognizable legal theory.” Samiento v. World Yacht Inc., 10 N.Y.3d 70, 79 (2008). 6. In our case, it is clear that plaintiff has presented the necessary elements for a cognizable cause of action for its Fourth Causes of Action, giving plaintiff’s Complaint a liberal construction and the benefit of every possible favorable inference. POINT II DEFENDANTS’ MOTION TO DISMISS THE CAUSE OF ACTION FOR VIOLATION OF CONSTRUCTIVE TRUST FUNDS MUST BE DENIED AS PREMATURE 7. With regard to plaintiff’s cause of action for violation of constructive trust funds against the defendants, where, as here, the possession of documents necessary to prosecute the this claim have not yet been discovered as no discovery has taken place, the defendants’ motion to dismiss the fourth cause of action must be denied as premature. See Liberty Management & Const. Ltd. V. 417 Park Ave. Corp., New York County Supreme Court, New York County, Index No. 151800/2015 (November 14, 2016). A copy of Judge Eileen A. Rakower’s decision dated November 14, 2016 is annexed hereto as Exhibit A. 3 of 5 FILED: NEW YORK COUNTY CLERK 10/12/2017 04:20 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/12/2017 CONCLUSION WHEREFORE, it is respectfully requested that: (1) the defendants’ motion to dismiss the Fourth Cause of Action be denied in its entirety; (2) awarding plaintiff reasonable attorneys’ fees; and (3) together with such other, further and different relief as this Honorable Court deems just, proper and equitable. Dated: New York, New York October 12, 2017 WILSON & CHAN, LLP By: Henry C. Chan, Esq. Attorneys for Plaintiff INTEGRATED PROJECT DELIVERY PARTNERS, INC. 733 Third Avenue, 15th Floor New York, New York 10017 Tel: (646) 790-5848 Fax: (646) 417-7879 hchan@wilsonchanlaw.com Our File No.: 00450.00002 To: Attn: Peter Moulinos, Esq. MOULINOS & ASSOCIATES LLC Attorneys for Defendants 150 East 58th Street, 25th Floor New York, New York 10155 Tel: (212) 832-5981 4 of 5 FILED: NEW YORK COUNTY CLERK 10/12/2017 04:20 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/12/2017 AFFIRMATION OF SERVICE STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) Henry Chan, Esq., being duly sworn deposes and says: Deponent is not a party to the action, is over eighteen (18) years of age and resides in New York County, New York. On October 12, 2017, deponent served the within AFFIRMATION IN OPPOSITION to the defendants’ attorneys via NYSCEF. By: s/ Henry Chan Henry Chan, Esq. To: Attn: Peter Moulinos, Esq. MOULINOS & ASSOCIATES LLC Attorneys for Defendants 150 East 58th Street, 25th Floor New York, New York 10155 Tel: (212) 832-5981 5 of 5