Inner View Inc. v Circle Press, Inc.
2012 NY Slip Op 31029(U)
April 17, 2012
Supreme Court, New York County
Docket Number: 601152/10
Judge: Judith J. Gische
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This opinion is uncorrected and not selected for official
Inner VIM Inc. and Tzelan, LLC
Clrds Preas, Inc., One 2 One on Varick, LLC,
Next Printing & Design, Inc.,
1 800 Postaatds, he., and P r w Access, LLC,
Recitation, as requfrd by CPLR 5 2219 [a] of the papers considwad in the mvlsw of
thla (hssa) motion($):
Defs’ OSC (consolldatlon) wMJK affirm, DM affid, Qxha .......................
Pttfs’ opp w/BB afflm, TC a ,exhs ...................
Defe’ reply wMJK affirm .............................
Thls b dabndanta’ motion for an order ccrnsolldatlng dhls eass with the cas8 now
pendlng M o m H a . Rkhard Braun -LC
v. 121 V&k Street. Corp., S u p m a
Court, N.Y. Co., 1057W11)(YheVarick actlon”)on Ute basb that DavM Mow1
(“Moyal*) b the president of defendants In thh ectlon and 121 Varlck Street Cow., the
defendant in the VarM actlon. Tammy Chou (Thou”), the presldsnt of lnnw View, Inc.
(*Inner View“) and Tzelan, Inc. (%elan?, plaintiffs In thh action, provides her affldavlt
in oppoafflon. Tzelan 4~a k the plainttffin the Varlck action. Hsrsindbr, unlme
pmklsd, plalnttffa in both actlono will b rsfarred to as “Chou’ and the
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defendand in both acbions a8 "Moyal."Other rolidaough In Moyal's mown is: 1) a
pmtectlve odor on tha bash that Chou I harassing him with ~IIVOIOUS
engaging In naumpUtiou8"
discovery, 2) legal fass for the coat o thh motion and 3) Part
The action at bar Is for a prhrets nubance. Chou Is the cornmedal proprhtary
kuoe of spa-
on the 9floor oftha buildlng located at 121 Varluk Stteat, New Yo&,
New York. Moyal has cornmarcia1space on the 6" lloor, dlrsctly above Chou. Chou
claims that M w l is operating 8 printing p m end other heavy equipmant that Chou
claims is noisy, diaruptiva and oauses w e 8 e vlbmtions, whiuh acmrdhg to Chou,
mndera It difflcutt fc# her t get work done. Not only la 121 Verlek tha defendant In the
Varlck actlon, it is altm the commerdal coop corporation that owns the building. 121
Varick is 8 prindpal ahareholder whereas Tzelan ia a minow shareholder.
Moyal harc senred Chou with B 3CbDay Ndca to Cum dabad April 18,2011 ("30
Day Notice'), alleging that Tzelan is illegally uaing it6
floor space. The Violation
16 that the space must ba used aa commercial space, not ofilce space.
The Varick action WEIS
commenced May 201 1, whems the a d o n at ber w88
commsnoed in May 2010. The Varlck action is for, among other things, a Yellowetone
Injunction. Justice Braun Issued a temporary mtmjning order, tolling the time to cure
the default alleged In the 30-Day Notlce and subsequently, Tzslan and 121 Varldc
sntersd into a stipulation dated Septembsr 30,201 1 prwidlng that 121 Veri&
prejudkm. In that etlpulation, Tzelan a b withdrew b la,
2? 3a and 4* eause#r of action, m h of which Involved the 3O-Dsry Notim. Wll
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mmalning In the Varick actlon are: Tzslan’s 9 and 6” CBU-
of aebion (“,COAl).
The 5’” COA b for Injunctive mlbf, ordering 121 Varick (the coop) to snbres tha
proprietaary lema againat Maya1 and dechring him t be i default o his @ floor lease
bemum of the ownsrshlp/opration of the printhg praas, etc. The ernCOA b for 0
dedamtlon that an emergency exists on the 6” floor h u s e r lt i in partlal danger of a
collapse and there am toxic chemicals M n g down to the
Mop1 contends that consolIdation is warranted rrincm 1) the parties arc) basically
the same sin-
he ia a principal of defendants in both c~868,2) 1 no prejudicet
Chou, 3) Chou Is judge shopping and, 4) the relief sought Is the same and involve
common bsuea of fact and law.
Chou alpues that the two umus are completely warate bemuse In the &on at
bar she seeks relfef Pgairmt the lessees of the 8” floor whereas In the Varlck action ahe
seeks an order mquidng the coop to enforce the proprietmry iaaw by, H necamary,
proaxidfngto svlct Moyal. Chou eontend8 that Moyal, In brlnging thls motion, Is
blurring the line betwwn himself a8 prindpal ofthe 6’” floor tmants vetmu hImwY as
the owner/ principal of the coop. According to Chou, this is ala0 Moyaro way o getting
havlng her pay for legal and other feee because Tzeian, ma minority eharehoider, is
obllqated to pay 9.08% o the wop’r axpen-,
induding legal fees and expen-.
Thu, Chou dalrns Moyal I using the coop wrpomtion t fund hie personal battles wtth
hsr and ather shareholders in the building with whom hs may have dk3putes. In
response to the# dalma, Moyal contends that court a n fashfon an a p p r o p w
which can avoid any confile&.
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Regadless of the undsrlylng dlsputes betwleen these shuleholdera, Moyal has
pmsmtad a eogant, rational and pernuashre mamn why both these e8869 belong
before the same judge, even If they are not consoUdated far joint ml. fhe Issum$ In the
Varick actlon clearly bear upon the Imues in the c m at bar. h m s In the adbn at
bar, the dispute Is between tenants/lesaees, the 121 Varick a c t h s#ks actlon by the
board which, according to Chou, is dominated by MopI. Under those drcumtmcw,
true consolldation (Le.for all purposes) would be too wnfwing and mate a potsntlal
conflict bacauss, a8 Chou oorrectly ststeo, Moyal would be In the porttbn o having t
snfom the Bm floor proprietery k a s cyahst himself.
The court win, however, transfer to b I f the, Varick adon and cowlldaPs the
two eases for joint dlscxlvery only. In &is way, both cases will travel together In Part 10,
for the most part appearing the mms day on the calendar, unleas otherwlae provided.
Moyal has R M concam8 about dkovory In them clwt bacomlng duplieabhrs
and prsaantly the partles appear unable t work out the loglatiat of s a m
independently. By having both cases In thls part, dlacovery ann ba stssarnllned and
Ths court has alao considered that by having them acthns M o r e dlfbrent
judges thb ia not only burdensome to already 8tmfned judidal moutc88, but there Is
a b the very Ma! pwrsiblllty of inharmonlour tf not Inconslatent dd8lona. Thu8 the
salutary goal of CPLR 802, which h to avoid unnect#laaryc s and delay in trying
would be -wed by cansolldatlng these two R Q ~ ~ Ofor thh limited pup~M
Go.. Inc. v. Frusen G
172 AD2d 208 [ "
I Dept 18811).
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Havlng granted consolMaUon for Johtdbcovsry only. Ths new caption ahaH be as
cou#r or THE STATE NEWY~RK
C w o r NEWYORK: PART
Inner vlsw Ino. and Tzelan, U C .
P a n H (e),
IN., Om, 2 One an Verldr, LLC,
Next Prlntlng & b u n , IN., 1 800
Poacards, Inc, and Prom Accrsss,UC,
121 Vakk 8trwt Corp.,
Defendanta shall serve a copy o t i order wtth Ndce of Entry on the Clerk In
Offlcs of Trial Support M) the court's m r d s a n be so marked. If
81 further or dfflbmnt
order i nscsuory to effectuatethe I l m M consolidation hereby ordmmd, defendant8
may, on notlce, presant the appropriate order for the court's signaturn.
Pmmntty the 121 Varick uase Is on for an appearance before Judge Braun on
April 24,2012. bbre thia caw was mnsolldetad, a mtus conferonce m a scheduled
for June 7,2012 In Part 10. Defendantsshall sewa a copy o thh order (even tf It la not
ymt sntsrsd) upon the Clerk In Judge Braun's part in advanos ofthe Aprll24" appearanw
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that the appearance In that part can be dr l n.
Given the complicated dlswvery l s that have adsan, the oourt hereby
rdvrncsr the compllancm conference in Part 10 t May 10,2012 at B:30 8.m.
In accordance 4 t h the foregoing,
It Is hereby
ORWR~P the mown by defendants to consolidate thb c8$ewith the a s s
before Judge Bmun I grantsd only t ths extent that the am8 are conrolMated for jolnf
Inner View Inc. and Trslan, U C .
-8gmlnstChcb P m , Inc;., O m 2 Ons on Vorlck, LLC,
Next PrlnClng & M a n , Inc., 1 800
he, and I”W8 ACCSU, LLC,
W n d m n t (e).
P h f M (a),
Defendant ( )
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ORDERED defendanb shall ~ b l avcopy ofthis order wtth N o t b of Entry on
the Clark In 0
of Trfal Support $0 the court's recotdo ean be 80 markad. If a further
or different order b
nmessary to affectuate the Iimbd eonsolidation hereby ordered,
defendanla may, on notke, pressnt the approprlata order fw the eoUrYs signaturn; and
tt la further
ORDERED that d d n d s n k shall also m m a oopy of thls order (even if H Is not yet
sntard) upon the Clerk In Judge Braun's part In advance of the April 24'happearance so
that tha appearance In that part can be eliminated; and it is further
OROER~D the court hereby advnneos the mpllanee confenrnce In Part 10
to May 10,2012 mt 9 3 am; and it la further
ORPEW that any rollsf luque8M but not addmwmd Is harmby dsnisd; and It t
ORDEW that thb conetitutm the dscision and order of the court.
New York, New York
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