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FILED: NEW YORK COUNTY CLERK 12/09/2014 03:03 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 12/09/2014
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION, FIRST DEPARTMENT
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PETER STERN and EXPRESS TRADE
CAPITAL, INC.
Plaintiffs/Respondents, Index No. 653476/2013
-against-
CIVIL APPEAL
OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., PREARGUMENT STATEMENT
DELEX INC., DELEX AIR CARGO, LLC, a Delaware
limited liability company, and DELEX AIR CARGO, LLC.
a Washington limited liability company.
Defendants/Appellants.
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1. TITLE OF ACTION: As set forth in caption.
2. THERE HAS BEEN NO CHANGE IN THE TITLE OF THE ACTION.
3. INDIVIDUAL NAME, LAW FIRM NAME, ADDRESS, AND TELEPHONE
NUMBER OF COUNSEL FOR EACH APPELANT OR PETITIONER:
Robert Bondar, Esq., Law Office of Robert Bondar, 28 Dooley Street, 3rd fl.,
Brooklyn, NY 11235, tel.: (347) 462-3262, appearing for all Defendants/Appellants.
4. INDIVIDUAL NAME, LAW FIRM NAME, ADDRESS, AND TELEPHONE
NUMBER OF COUNSEL FOR EACH RESPONDENT:
David Estrakh, Esq., 1410 Broadway, Suite 2600, New York, NY 10018, tel.: (516)
765-5565, appearing for all Plaintiffs/Respondents.
5. COURT AND COUNTY FROM WHICH APPEAL IS TAKEN: Supreme Court, New
York County.
6. APPEAL IS FROM A DECISION AND ORDER ENTERED ON DECEMBER 9, 2014,
IN COUNTY CLERK’S OFFICE.
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7. THERE IS NO RELATED ACTION OR PROCEEDING NOW PENDING IN ANY
COURT OF THIS OR ANY OTHER JURISDICTION.
8. THE NATURE AND OBJECT OF THE CAUSES OF ACTION AND WHAT TYPE OF
RELIEF WAS SOUGHT:
Breach of contract; Reargue motion to dismiss three causes of action of the Plaintiff’s
complaint sounding in breach of contract, based upon the documentary evidence,
pursuant to CPLR 3211(a)(1), the contract annexed to the complaint, for uncertainty and
indefiniteness, as the annexed contract is wholly devoid of subject matter.
9. RESULT REACHED IN COURT:
The trial court denied Defendants’ motion to dismiss breach of contract action on July 7,
2014. The Court granted Defendants leave to reargue the motion and denied the
Defendants’ reargument motion on November 10, 2014.
10. GROUNDS FOR SEEKING REVERSAL, ANNULMENT, OR MODIFICATION:
The purported contract lacks sufficient certainty and specificity to be enforceable, it
contains only a price and is missing all other material terms and subject matter. The terms
cannot be considered ambiguous if they are completely missing - and thus, parol
evidence cannot be admitted to insert the missing terms. Any objective method for
determining the subject matter must be contained or referenced within the four corners of
the contract or the contract is rendered unenforceable.
11. DEFENDANTS PREVIOUSLY FILED AND SERVED NOTICE OF APPEAL OF THE
MOTION TO DISMISS. DEFENDANTS INTEND TO ABANDON THAT APPEAL
AND MAINTAIN ONLY THE APPEAL CONTAINED HEREIN.
DATED: December 9, 2014 Yours, etc.
By: s/ Robert Bondar
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Robert Bondar, Esq.
Attorney for Defendants
28 Dooley Street, 3rd floor
Brooklyn, New York 11235
Telephone (347) 462-3262
TO:
David Estrakh, Esq.
Attorney for Plaintiffs
1410 Broadway, Suite 2600
New York, NY 10018
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Preview
FILED: NEW YORK COUNTY CLERK 12/09/2014 03:03 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 12/09/2014 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION, FIRST DEPARTMENT --------------------------------------------------------------------X PETER STERN and EXPRESS TRADE CAPITAL, INC. Plaintiffs/Respondents, Index No. 653476/2013 -against- CIVIL APPEAL OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., PREARGUMENT STATEMENT DELEX INC., DELEX AIR CARGO, LLC, a Delaware limited liability company, and DELEX AIR CARGO, LLC. a Washington limited liability company. Defendants/Appellants. --------------------------------------------------------------------X 1. TITLE OF ACTION: As set forth in caption. 2. THERE HAS BEEN NO CHANGE IN THE TITLE OF THE ACTION. 3. INDIVIDUAL NAME, LAW FIRM NAME, ADDRESS, AND TELEPHONE NUMBER OF COUNSEL FOR EACH APPELANT OR PETITIONER: Robert Bondar, Esq., Law Office of Robert Bondar, 28 Dooley Street, 3rd fl., Brooklyn, NY 11235, tel.: (347) 462-3262, appearing for all Defendants/Appellants. 4. INDIVIDUAL NAME, LAW FIRM NAME, ADDRESS, AND TELEPHONE NUMBER OF COUNSEL FOR EACH RESPONDENT: David Estrakh, Esq., 1410 Broadway, Suite 2600, New York, NY 10018, tel.: (516) 765-5565, appearing for all Plaintiffs/Respondents. 5. COURT AND COUNTY FROM WHICH APPEAL IS TAKEN: Supreme Court, New York County. 6. APPEAL IS FROM A DECISION AND ORDER ENTERED ON DECEMBER 9, 2014, IN COUNTY CLERK’S OFFICE. 1 7. THERE IS NO RELATED ACTION OR PROCEEDING NOW PENDING IN ANY COURT OF THIS OR ANY OTHER JURISDICTION. 8. THE NATURE AND OBJECT OF THE CAUSES OF ACTION AND WHAT TYPE OF RELIEF WAS SOUGHT: Breach of contract; Reargue motion to dismiss three causes of action of the Plaintiff’s complaint sounding in breach of contract, based upon the documentary evidence, pursuant to CPLR 3211(a)(1), the contract annexed to the complaint, for uncertainty and indefiniteness, as the annexed contract is wholly devoid of subject matter. 9. RESULT REACHED IN COURT: The trial court denied Defendants’ motion to dismiss breach of contract action on July 7, 2014. The Court granted Defendants leave to reargue the motion and denied the Defendants’ reargument motion on November 10, 2014. 10. GROUNDS FOR SEEKING REVERSAL, ANNULMENT, OR MODIFICATION: The purported contract lacks sufficient certainty and specificity to be enforceable, it contains only a price and is missing all other material terms and subject matter. The terms cannot be considered ambiguous if they are completely missing - and thus, parol evidence cannot be admitted to insert the missing terms. Any objective method for determining the subject matter must be contained or referenced within the four corners of the contract or the contract is rendered unenforceable. 11. DEFENDANTS PREVIOUSLY FILED AND SERVED NOTICE OF APPEAL OF THE MOTION TO DISMISS. DEFENDANTS INTEND TO ABANDON THAT APPEAL AND MAINTAIN ONLY THE APPEAL CONTAINED HEREIN. DATED: December 9, 2014 Yours, etc. By: s/ Robert Bondar 2 Robert Bondar, Esq. Attorney for Defendants 28 Dooley Street, 3rd floor Brooklyn, New York 11235 Telephone (347) 462-3262 TO: David Estrakh, Esq. Attorney for Plaintiffs 1410 Broadway, Suite 2600 New York, NY 10018 3