Blaze Inc. v Rhinestine

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Blaze Inc. v Rhinestine 2012 NY Slip Op 30846(U) January 17, 2012 Supreme Court, Nassau County Docket Number: 7984/11 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ---------------------- ------ -- ---------- -- ------------ --- ------ -----)( ---------- - ----- ------------- - ---------- --- --- --------- ------- - [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: PART 13 BLAZE INC. d/bla WOODY' S VILLAGE SALOON, Plaintiff DECISION AND ORDER - against - Inde)( No: 7984/11 KIRA RHINESTINE and MICHAEL J. Motion Sequence No: 001 SPOSATO, ACTING SHERIFF OF NASSAU COUNTY, Original Return Date: 06/17/11 Defendants. PRESENT: HON. JOEL K. AS ARCH, Justice of the Supreme Court. The following named papers numbered 1 to 4 were submitted on this Notice of Motion on June 17 2011: Papers numbered Order to Show Cause , Affirmation in Support Affirmation in Opposition Reply Affirmation Plaintiff, Blaze , Inc. d//a Woody s Vilage Saloon , moves , by Order to Show Cause pursuant to CPLR 6301 , to enjoin the defendants , or their respective officers , agents , servants employees , successors and all other people acting by or on their behalf, from conducting a propert e)(ecution auction and/or sale for propert located at 1015 Park Boulevard , Massapequa Park , New York , the property occupied by the plaintiffherein and operated as a bar and gril known as Woody's Vilage Saloon. This action for a permanent injunction (commenced on May 31 , 2011) stems from an [* 2] underlying lawsuit brought by the defendant herein , Kira Rhinestine , in Suffolk County Supreme Cour (Inde)( No. 09899106) against Courthouse Bar & Gril , Janbert Realty Corp. , Zachia Inc. and Louis Sosa. The plaintiff sought to recover for serious and severe personal injuries arising out a dog bite to her face which occurred on April 24 , 2003 at the Courhouse Bar & Gril located at 1750 Merrick Avenue , Merrick, New York. The dog that attacked Ms. Rhinestine was allegedly owned by Louis Sosa who was the owner and/or manager of the bar. Apparently, in that proceeding, neither the entity known as Courhouse Bar & Gril (which or foreign authorized corporation was alleged in the Complaint to be a domestic corporation tpar. 3 tpar. 5 ) nor Louis Sosa , appeared in the action. On or about December 5 , 2008 , the Supreme Court Suffolk County (Hon. Jeffrey Arlen Spinner), after an Inquest , awarded the plaintiff $ 1 500 000. for past and future pain and suffering from defendants Courhouse Bar & Gril and Louis Sosa. Thereafter , by Order to Show Cause , Raymond Forester , a principal in R&L Bar & Gril , Inc. moved for an Order limiting any judgment to be entered in the Suffolk County dog bite action against " Courhouse Bar and Gril" to the bar located at 1750 Merrick Avenue , Merrick , New York the place where the alleged incident occured. Notably, Raymond Forester is a principal in R&L Bar & Gril , Inc. , the corporation that owned the bar located at 1015 Park Boulevard , Massapequa Park New York. Forester maintained in his affdavit in support of his Order to Show Cause therein that his corporation , R&L Bar & Gril , Inc. was incorporated in New York on August 3 , 2004 (after Ms. Rhinestine s accident). He stated that R&L Bar & Grill , Inc. purchased the bar located at 1015 Park Boulevard , Massapequa Park , New York , from Park Blvd. Bar Inc. in August 2004 , at which time it was (also) known as Courhouse Bar & Gril. Forester also stated in his sworn affidavit that to the best of his knowledge , the bar was named " Courhouse Bar & Gril" shortly after it was purchased [* 3] by Park Blvd. Bar Inc. from L.J.H. Inc. in March 2002 (before Ms. Rhinestine s accident). In any event , the Supreme Cour Suffolk County denied Forester s application on the grounds that " (n)o good and proper reason for the relief being request( ed) (wasJ proffered (and) therefore , this Cour (would) not look back almost three years to entertain at this late date such indemnity. In this action , plaintiff, Blaze , Inc. d/la Woody s Vilage Saloon , claims to be the licensed owner of the bar located at 1015 Park Boulevard , Massapequa Park, New York. Plaintiff s only proof of ownership is a New York State Liquor Authority License with an effective date of Januar 26 2011 and an e)(piration date of December 31 , 2012. In moving for such preliminar injunction counsel for the plaintiffherein states that the bar located at 1015 Park Boulevard , Massapequa Park New York is owned by Blaze Inc. and is known as Woody s Vilage Saloon. It must be noted however, that no affidavit of an individual with personal knowledge has been furished , nor has the Complaint been verified by a par with knowledge. Rather , counsel maintains that the prior owner of the bar was R&L Bar & Gril , Inc. and that neither Blaze , Inc. nor R&L Bar & Gril , Inc. was in e)(istence when the plaintiff was injured in 2003. Counsel argues that to permit the Sheriffs Office to advertise and conduct a sale at the plaintiff s premises at 1015 Park Boulevard , Massapequa Park New York on June 2 , 2011 (this short time period may e)(plain why there is no affidavit from plaintiff) for propert of a judgment- debtor which is not at that location and which has never been at that location is a " travesty of justice " and wil cause " irreparable , damage to the business and reputation of the plaintiff (Complaint embarassing and disruptive 15). In order to obtain injunctive relief pursuant to CPLR Article 63 , the moving par must demonstrate (1) a likelihood of success on the merits; (2) irreparable injury absent granting the preliminar injunction; and (3) a balancing ofthe equities in the movant' s favor (CPLR 6301; Aetna [* 4] v. Ins. Co. Capasso v. WT Grant Co. 75 NY2d 860 (1990); Srogi 52 NY2d 496 (1981)). The part seeking the preliminar injunction has the burden of establishing a prima facie entitlement to such relief (Gagnon Bus Co. , M Blake Agency, Inc. v. Inc. v. Vallo Transportation, Ltd. 13 AD3d 334 (2 Leon 283 AD2d 423 (2 Dept. 2001)). Proof establishing the foregoing elements must be supported by affdavit and other competent proof supported Faberge Inti. Inc. (CPLR6312(c); Willam Dept. 2004); allegations are insuffcient v. by evidentiar detail Di Pino 109 AD2d235 240 (l Dept. 1985)). Bare conclusory to support the It is clear that at all relevant (Neos motion times v. Lacey, 291 AD2d 434 (2 Dept. 2002)). Courthouse Bar & Gril" located at 1015 Park Boulevard , Massapequa Park , New York was a non-entity; rather , it was always simply an assumed name. Thus , assuming that counsel' s contentions are otherwise accurate , it is plain that when L.J . Inc. , Park Blvd. Bar , Inc. and R&L Bar & Gril , Inc. all owned the Massapequa Park propert and establishment , they all operated under the assumed name " Courouse Bar & Gril. " Assuming the truth of plaintiffs counsel' s contentions , as early as March 2002 , the corporation known as L.J . Inc. sold the Massapequa Park propert and establishment to Park Blvd. Bar Inc. Subsequently, in August 2004 , the corporation known as Park Blvd. Bar , Inc. sold the propert and establishment the corporation R&L Bar & Gril Inc. However , issues persist which affect the Cour' s ability to determine whether a preliminar injunction is appropriate , such as issues of common ownership, compliance with formalities in operating the establishments , whether the plaintiff is jure Courhouse Bar & Gril" , v. or or whether the plaintiff is the judgment- debtor referred to in the Sheriffs notice of sale. Issues presented in this Provosty de facto case focus on responsibility for liabilty. See , Lydia E. Hall Hosp. 91 AD2d 659 (2 Dept. 1982), aff' 59 NY2d 812 (1983). e. [* 5] Pursuant to CPLR 6312( c) and in the interest of justice , a hearing should be held to determine if the plaintiff is , in fact , a separate entity from " Courthouse Bar and Gril" , the judgment- debtor. To permit the sale of plaintiff corporation s assets without a hearing may, in fact , cause irreparable injur to the plaintiff. Whether the alleged continuing involvement of Louis Sosa (a. k.a. LaSusa) is sufficient to permit enforcement of the judgment is something that should be determined by the Court for following a hearing. Accordingly, after due deliberation , it is ORDERED , that counsel for the plaintiff, Blaze , Inc. d//a Woody s Vilage Saloon , and defendant Kira Rhinestine shall appear before the undersigned on January 30, 2012 at 9:30 a. for the purose of scheduling pre- hearing disclosure and to select a hearing date(s) " to determine the relationship if any between Louis Sosa (a/aLaSusa), Woody s Vilage Saloon and Courhouse Bar and Gril" (Affrmation in Opposition, page 3) and whether the plaintiff is the judgment- debtor referred to in the Sheriff s notice of sale. The temporar restraining order against enforcing the judgment contained in the Order to Show Cause granted on May 31 , 2011 , is continued pending the fuher Order of the Cour. This constitutes the Decision and Order of the Cour. Dated: Mineola, New York Januar 17 , 2012 ENTER: Copies mailed to: Paul Eisenstein , Esq. Attorneys for plaintiff Ferro , Kuba , Mangano and Sklyar , P. Attorneys for defendant Kira Rhinestine ENTERED MAR 3 0 2012 NASSAU COUlliTY COUNTY CL:ERK' S OFFICE

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