Miracle Inn, LLC v First Am. Intl. Bank
2012 NY Slip Op 31106(U)
April 2, 2012
Supreme Court, Queens County
Docket Number: 6765/11
Judge: Augustus C. Agate
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SHORT FORM ORDER
NEW YORK SUPREME COURT - QUEENS COUNTY
Present: HONORABLE AUGUSTUS C. AGATE
Justice
------------------------------------x
MIRACLE INN, LLC and LI SHEN,
Plaintiffs
IAS PART 24
Index No.: 6765/11
Motion Dated:
July 19, 2011
-againstCal. No.: 21
FIRST AMERICAN INTERNATIONAL BANK,
AMERASIA BANK, LIHONG DONG and
LUJING LAI,
Defendants.
m# 1
------------------------------------x
The following papers numbered 1 to 38 read on this motion
by defendants Lihong Dong and Lujing Lai (i) to dismiss the
action pursuant to CPLR 3211(a)(4) on the ground that there is a
prior action pending between the same parties for the same cause
of action in this court and (ii) to dismiss the complaint as
against defendant Lujing Lai pursuant to CPLR 3211(a)(8) on the
ground of lack of personal jurisdiction; cross motion by
plaintiffs (i) for an order consolidating this action with the
action pending under Index No. 1950/09 (ii) for an order fixing
the venue in this county for a joint trial with the action
pending under Index No. 5699/10 in this court and (iii) to vacate
the note of issue filed under Index No. 1950/09; cross motion by
defendant Amerasia Bank to dismiss the complaint insofar as
asserted against it pursuant to CPLR 3211(a)(1); and cross motion
by defendants Lihong Dong and Lujing Lai “for judgment on the
pleadings.”
PAPERS
NUMBERED
Notice of Motion - Affidavits - Exhibits.........
1 3 Notices of Cross Motion - Affidavits - Exhibits. 5 Affirmations in Opposition - Exhibits ............ 16 Replying Affirmations ............................ 27 -
4
15
26
38
Upon the foregoing papers it is ordered that this motion and
these three cross motions are decided as follows:
This action arises out of a contract whereby the defendants
Lihong Dong and Lujing Lai were to purchase the Best Western
Marshall Manor in Horseheads, New York from the plaintiffs.
Pursuant to the contract, the defendants were required to prove
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on or before December 2005 that they had $600,00.00 cash to
consummate the closing. The closing never occurred, and various
lawsuits relating to this transaction were commenced.
The complaint in the instant action alleges that defendants
Dong and Lai, in an attempt to mislead and defraud the
plaintiffs, provided forged and altered bank documents to
plaintiffs as proof that they had the necessary $600,000.00 cash
to consummate the closing. The complaint further alleges that
the individual defendants, in conjunction with defendants First
American International Bank and Amerasia Bank, prepared and
presented to the plaintiffs false and altered deposit slips and
bank statements. The complaint alleges causes of action sounding
in (1) fraud and misrepresentation, (2) violations of General
Business Law § 349, (3) tortious interference with a contract,
(4) civil conspiracy, (5) prima facie tort and (6) breach of duty
as against the bank defendants.
Defendants Dong and Lai now move to dismiss this action
pursuant to CPLR 3211(a)(4) on the ground that there is a prior
action pending in this court between the same parties for the
same cause of action. In order for a court to dismiss an action
on the ground that there is another action pending between the
same parties for the same cause of action, there must be
sufficient identity as to both the parties and the causes of
action asserted in the respective actions. With respect to the
parties, the requirement is that there be “substantial identity.”
(White Light Prods., Inc. v On the Scene Prods., Inc., 231 AD2d
90, 93-94 [1997].) Although the joinder of additional
defendants, in itself, need not result in the defeat of a motion
pursuant to CPLR 3211(a)(4), it is essential that the prior
action be for the same cause of action as the instant one. (Kent
Dev. Co. v Liccione, 37 NY2d 899, 901 [1975].)
The causes of action alleged in the instant complaint are
not completely similar to the ones alleged in the prior action
pending under Index No. 1950/09. As noted above, the complaint
asserts that the individual defendants acted in conjunction with
the bank defendants to defraud the plaintiffs and seeks relief
against these bank defendants. The prior action does not involve
the banks and alleges fraud, breach of contract and defamation
per se against the individual defendants. There are additional
causes of action in the instant complaint that are not part of
the prior action. Thus, the branch of the motion to dismiss the
action pursuant to CPLR 3211(a)(4) is denied.
The branch of the motion to dismiss the complaint as against
defendant Lujing Lai on the ground of lack of personal
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jurisdiction pursuant to CPLR 3211(a)(8) is denied.
The annexed affidavit of service for defendant Lujing Lai
avers that defendant Lai was served by leaving a copy of the
summons and complaint with defendant Lihong Dong, described as
“co-occupant” on April 6, 2011, followed by a mailing to
defendant Lai. (see CPLR 308[2].) Defendant Lai submits an
“affidavit” stating that the service was defective since only one
copy of the summons and complaint was delivered to defendant
Dong. He claims that no copy of the summons and complaint was
delivered specifically for him to defendant Dong. According to
defendant Lai, the one copy of the summons and complaint that was
delivered to defendant Dong constituted service only upon her.
Generally, a process server's affidavit of service
establishes a prima facie case as to the method of service and,
therefore, gives rise to a presumption of proper service (see
Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589 [2009];
Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340, 341
[2004].)
In the matter at hand, the moving papers do not contain an
affidavit from defendant Dong. Such affidavit is necessary since
she is the person allegedly served on behalf of defendant Lai.
Thus, defendant Lai has not submitted sufficient evidence to
rebut the presumption of proper service herein.
The court also notes that the “affidavit” of defendant Lai
is procedurally defective. First, it does not contain a proper
New York caption with the court the action is venued in. It is
merely titled “Affidavit of Lujiang Lai.” (see Midland Funding
LLC v Loreto, 34 Misc 3d 1232(A)[2012].) Although the document
is sworn, it fails to state anywhere that it is “true under
penalty of perjury.” (see CPLR 2106.)
The branch of the cross motion by plaintiff to vacate the
note of issue in the action pending under Index No. 1950/09 is
denied as moot. The court’s computer indicates that the note of
issue in that action was vacated on March 7, 2012.
With respect to the branch of the cross motion for
consolidation, a motion for consolidation or joint trial pursuant
to CPLR 602(a) rests within the sound discretion of the trial
court. (Mattia v Food Emporium, Inc., 259 AD2d 527, 527 [1999];
McDutchess Bldrs., Inc. v Dutchess Knolls, Inc., 244 AD2d 534,
535 [1997].) Absent prejudice to a substantial right of the
opposing party, consolidation or a joint trial is proper where
common questions of law and fact exist. (CPLR 602[a]; D’Abreau v
3
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American Bankers Ins. Co. of Fla., 261 AD2d 501, 502 [1999];
Raboy v McCrory Corp., 210 AD2d 145, 147 [1994]; Stephens v
Allstate Ins. Co., 185 AD2d 338, 339 [1992].)
The court finds that since the actions herein arise out of
the same transaction and involve common facts, consolidation
would be proper and result in a more expeditious trial. Indeed,
the interest of judicial economy outweighs any inconvenience to
the parties herein.
Thus, the branch of the cross motion for consolidation is
granted, and this action, bearing Index No. 6765/11 shall be
consolidated with Action No. 1, bearing Index No. 1950/09, in
this Court for all purposes under Index No. 1950/09; and it is
further
ORDERED, that the Clerk of the Court, upon being served with
a certified copy of this order with notice of entry, is directed
to transfer all papers filed under Index No. 6765/11 to the file
of Index No. 1950/09; and it is further
ORDERED, that the caption of the Consolidated Action shall
be:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
-------------------------------------X
MIRACLE INN, LLC and LI SHEN
Index No. 1950/09
Plaintiffs,
- against LIHONG DONG, LUJIANG LAI, FIRST AMERICAN
INTERNATIONAL BANK and AMERASIA BANK,
Defendants.
- - - - - - - - - - - - - -- - - - - -X,
and it is further
ORDERED, that a copy of this order with notice of entry be
served on all parties to the actions consolidated and the Clerk
of Queens County.
The court notes that pursuant to an order dated October 21,
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2011, the action pending under Index No. 1950/09 was combined for
purposes of a joint trial with the actions pending under Index
No. 5699/10 and 21491/10 in this court. Thus, in view of the
consolidation granted herein, the title of the cases combined for
joint trial shall now read as follows:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
-------------------------------------X
MIRACLE INN, LLC AND LI SHEN
ACTION NO. 1
Plaintiffs
Index No. 1950/09
- against LIHONG DONG and LUJIANG LAI, FIRST AMERICAN
INTERNATIONAL BANK and AMERASIA BANK
Defendants.
- - - - - - - - - - - - - - - - - - -X
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
- - - - - - - - - - - - - - - - - - - -X
D&D SUNSHINE LLC, LIHONG DONG, and
LUJIANG LAI,
Action No. 2
Index No. 5699/10
Plaintiffs,
- against MIRACLE INN, LLC and LI SHEN,
Defendants.
-------------------------------------X,
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
- - - - - - - - - - - - - - - - - - - -X
MIRACLE INN, LLC and LI SHEN,
Plaintiffs,
- against JUN QIU,
Defendant.
-------------------------------------X.
5
Action No. 3
Index No. 21491/10
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The court further notes that inasmuch as the note of issue
was vacated in all three actions, there will be no delay as a
result of the combination of these cases.
The cross motion by defendant Amerasia Bank to dismiss the
complaint insofar as asserted against it is denied.
On a motion to dismiss a complaint on the ground that there
is a defense founded upon documentary evidence pursuant to CPLR
3211(a)(1), the evidence submitted must “resolve all factual
issues as a matter of law and conclusively dispose of the
plaintiff’s claim.” (Del Pozo v Impressive Homes, Inc., 29 AD3d
621, 622 [2006] [quoting Berger v Temple Beth-El of Great Neck,
303 AD2d 346, 347 [2003]; Dodge v King, 19 AD3d 359, 360 [2005].)
Here, the cross movant has failed to present documentary
evidence which resolves all factual issues as a matter of law.
The claims against defendant Amerasia are based upon, in part,
fraud and misrepresentation. The bank statement annexed to the
cross motion does not eliminate all factual issues raised herein.
Finally, the cross motion by defendants Dong and Lai for a
“judgment on the pleadings” is denied without prejudice to
renewal. The defendants Dong and Lai made the original motion to
dismiss. A cross motion can only be served by a party upon the
moving party. (CPLR 2215; see Dugas v Bernstein, 5 Misc 3d 818,
825 [2004].) Inasmuch as defendants Dong and Lai are the
original moving parties, their separate cross motion is improper.
Accordingly, the motion by defendants Lihong Dong and Lujing
Lai to dismiss the complaint is denied in its entirety.
The branch of the cross motion by the plaintiffs for an
order of consolidation is granted as set forth above.
The branch of the cross motion by the plaintiffs for an
order fixing the venue in this county for a joint trial with the
action pending under Index No. 5699/10 is granted to the extent
set forth above.
The branch of the cross motion by the plaintiffs to vacate
the note of issue filed under Index No. 1950/09 is denied as
moot.
The cross motion by defendant Amerasia Bank to dismiss the
complaint insofar as asserted against it is denied.
The cross motion by defendants Lihong Dong and Lujing Lai
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“for judgment on the pleadings” is denied without prejudice to
renewal.
Date: April 2, 2012
AUGUSTUS C. AGATE, J.S.C.
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