Matter of Doo v Sie-En Yu
Annotate this CaseDecided on August 15, 2012
Supreme Court, Queens County
In the Matter of the Application of David Doo, Plaintiff,
against
Sie-En Yu et al., Defendants.
9965/2009
Appearances of Counsel:
the Plaintiff: appearing Pro Se
For Defendant John Chen: Hsu Law Associates, PLLC, by Allen Y. Hsu, Esq., 210 Canal St., New York, New York 10013
Charles J. Markey, J.
The following papers numbered 1 to 13 read on this motion by defendant John Chen for an award of summary judgment dismissing the plaintiff's complaint and cross motion by the plaintiff for discovery and sanctions for frivolous conduct against defendant's attorney.Papers Numbered
Notice of Motion - Affidavits - Exhibits....................................................................... 1-4
Notice of Cross Motion - Affidavits - Exhibit...........................................................5-8
Answering Affidavits - Exhibits............................................................................9-11
Reply Affidavits................................................................................................12-13
Pro se plaintiff David Doo commenced this action against several former and current members of the board of managers of the Park Regent Condominium. This condominium premises, located at 41-25 Kissena Boulevard in Flushing, Queens County, is a mixed-use premises which includes residential, commercial and professional units, as well as a garage. The plaintiff is the owner of a unit in the subject condominium and seeks to recover damages from the defendants, individually and in their capacities as members of the condominium board, for various acts of alleged willful misconduct, fraud, and breach of their fiduciary duty as directors of the condominium from 2003 and continuing to the date of the commencement of this action. This case is one of many actions that has been commenced in a series of on-going disputes between the plaintiff and various past and present members of the subject condominium board.
A motion to dismiss the complaint on CPLR 3211 grounds was decided by an order of this [*2]court, dated March 31, 2011 (Doo v Yu, 31 Misc 3d 1204(A), 2011 WL 1225669, 2011 NY Slip Op. 50494(U) [Sup Ct Queens County 2011] [decision by the undersigned]). As a result of that prior motion and resulting order, the only remaining claim against defendant Chen herein is the second cause of action for fraud arising out of defendant Chen and other defendants' alleged ongoing misuse of condominium parking areas to operate their own parking company and build an 800-square foot video rental store on the premises for personal gain from 2003 to date.
Defendant John Chen seeks summary judgment dismissing the plaintiff's complaint against him on the grounds that:
(1) the plaintiff can bring a derivative claim only if the board rejected a request that it take the action the plaintiff is pursuing or can demonstrate that such a demand would be futile;
(2) the plaintiff brings a derivative action and improperly mixes personal claims with derivative claims; and
(3) the plaintiff's claims are barred by res judicata and collateral estoppel in that the plaintiff brought a prior action against him and the other defendants seeking damages for breach of fiduciary duty which were previously dismissed by Justice Howard Lane in a prior action bearing Queens County Index Number 5268/08.
Defendant John Chen's request for summary dismissal of the complaint against him on the ground that the plaintiff may not assert a derivative claim herein is denied. Defendant John Chen has failed to make a prima facie showing that the defendant did not reject the plaintiff's request to take the actions the plaintiff is pursuing herein or that such request would not have been futile inasmuch as he fails to submit any evidence to support such contention (see, Alvarez v Prospect Hospital, 65 NY2d 230 [1986]).
Defendant John Chen has also failed to make a prima facie showing that the plaintiff improperly combined individual and derivative claims in the second cause of action asserted against him. The New York Court of Appeals has held that causes of action arising from allegations of "diversion of assets by officers or directors to their own enrichment, without more, plead a wrong to the corporation only, for which a shareholder may sue derivatively but not individually" (Abrams v Donati, 66 NY2d 951 [1985]).
A review of the plaintiff's complaint submitted in support of the defendant's motion for summary judgment reveals that the second cause of action is clearly derivative in nature. Thus, even if the plaintiff had erroneously joined his individual claims with those of the condominium corporation in the same complaint, it would not require dismissal of the second cause of action since he did not mix any individual and derivative claims within that cause of action (see, Baliotti v Walkes, 134 AD2d 554 [2nd Dept. 1987] ; cf. Abrams v Donati, 66 NY2d 951, supra). Accordingly, the motion for summary judgment on this ground is hereby denied. [*3]
Finally, contrary to defendant Chen's further contention, a comparison of the second cause of action asserted in this complaint with the causes of action asserted in the action bearing Queens County Index Number 5268/08, which was previously dismissed by Justice Lane, reveals that the subject claims are neither identical or similar in any way. Accordingly, the moving defendant's motion for summary judgment on res judicata or collateral estoppel grounds is also denied.
The branch of the cross-motion which seeks sanction for frivolous conduct against defendant John Chen and attorney Allen Y. Hsu attorney is denied.
Pursuant to 22 NYCRR 130-1.1, conduct is deemed frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
At this juncture, the plaintiffs have not demonstrated that the conduct of defendant John Chen and attorney Allen Y. Hsu is "frivolous" as defined by 22 NYCRR 130-1.1(c). The plaintiff has also not established sufficient cause to warrant sanctions since the conduct of defendant John Chen and counsel has not risen to the level of frivolous conduct (see, Schaeffer v Schaeffer, 294 AD2d 420 [2nd Dept. 2002]).
The branch of the cross motion which seeks discovery is granted to the extent that, within twenty (20) days after service of a copy of this order, bearing the Clerk of the Court's dated stamp of entry, together with notice of entry, defendant John Chen is directed to serve the plaintiff with the outstanding responses and information he agreed to provide to the plaintiff following the conclusion of his deposition by the plaintiff.
The Court notes that affidavit submitted by defendant Chen in opposition to the cross-motion for discovery contains Chen's denial that he is in possession of the records requested in the plaintiff's October 17, 2011 Notice of Discovery and adequately indicates where those
records may be obtained, to wit, from the current board of managers of the subject condominium.
The motion and cross motion are in all other respects denied.
The foregoing constitutes the decision, opinion, and order of the Court.
_______________________________ [*4]
J.S.C.
Dated: August 15, 2012
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