Moore v JP HHI, LLC

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Moore v JP HHI, LLC 2013 NY Slip Op 31848(U) July 30, 2013 Sup Ct, New York County Docket Number: 11-104250 Judge: Milton A. Tingling 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 NEW YORK COUNTY PRESENT: . Justice b . -. ._INDEX NO. MOTION DATE -V- 3/g / 1 3 MOTION SEQ. NO. The following papers, numbered 1 to 1 , were read on this motion tolfor Notice of MotionlOrder to Show Cause - Affidavits - Exhibits IW s ) . IW s ) . IW s ) . Answering Affidavits - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion is LL\ 0 \ e&. b ~ c ? i L . . ~ ; r A ~i,/a COUNTY CLERK S OFFICE NEW YORK &/?<f..................................................................... CHECK AS APPROPRIATE: ........................... MOTION IS: 1. CHECK ONE: CASE DISPOSED 2. GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER DO NOT POST DENIED , J.S.C. 0 NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER SUBMIT ORDER UFIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VIRGINIA MOORE, Plaintiff, DECISION and ORDER Index no. 11-104250 -againstJP HHI, LLC, A DELAWARE LIMITED LIABILITY COMPANY, JACOBSON PARTNERS AND BENJAMIN JACOBSON, FILED Defendants, COUNTY CLERK S OFFICE NEW YORK The Plaintiff Virginia Moore moves for summary judgment pursuant to CPLR $3212. Defendants, JP HHI (a limited liabiky company), Jacobson Partners, and Benjamin Jacobson oppose this motion. Defendants cross-move to consolidate this action with another action before this Court-Jacobson 113226/2011--and Partners v. Charles Moore and Virginia Moore, Index No. to amend their answer. Plaintiff opposes the cross-motion. This motion arises from action in which Plaintiff Moore seeks to recover unpaid distributions that are owed to her from JP HHI, LLC. The following facts are not at issue. Plaintiff is an investor in JP HHI, LLC (JP), a Delaware Limited Liability Company. Moore owns a 1.58 % membership interest ( Percentage Interest ). Defendant Jacobson Partners ( Jacobson ) is the sole member of the Board of Directors of JP HHI, LLC. Benjamin Jacobson ( Benjamin ) is the managing partner of Jacobson Partners. Pursuant to section 4.1 of JP HHI operating agreement, the Board may authorize distribution form the LLC to its members, [* 3] provided that afiy such distributioiis shall be made to the members in proportion to their respective Percentage Interests. JP HHI made distributions to its members on two occasions, October 4,2010 and March 24,201 1. Plaintiffs share of those distributions total $83,069.94, $28,3 18.10 from the first distribution and $54,75 1.84 from the second distribution. Neither of Plaintiffs distribution was paid to her. A movant on a summary judgment motion must establish his case as a matter of law. Winegrad v. New York University Medical Center, 64 N.Y.2d 85 1,853 (1985). A motion for summary judgment must be denied if a triable issue of fact exists. CPLR 63212; Zuckerman v. f City o New York, 49 N.Y.2d 557 (1980). The proponent of a summary judgment motion has the initial burden of coming forward with evidentiary proof in an admissible form demonstrating that it entitled to summary judgment. Zuckerman, supra. A review of the record shows that the Plaintiff has established a right to summary judgment..The fiefendants in their answer have admitted that according to JP HHI, LLC operating agreement Plaintiff was entitled to both distributions which total $83,069.94. The distribution was a legal obligation under the LLC operating agreement. Once the movant has established aprimafacie case that it is entitled to summary judgment, the burden then shifts to the party opposing the motion to tender sufficient evidence in admissible form to defeat the motion. Zuckerman, supra. The Defendants have not shown any legal excuse or defense on why such obligation was not complied with. Defendants allege Plaintiff acted with unclean hands and in bad-faith, but have not tendered sufficient evidence in admissible form to prove their claims or to defeat Plaintiffs motion for summary judgment. Defendants have not alleged any facts, which showed that Plaintiff had a duty to the LLC, or that Plaintiff breached such duty, or [* 4] that ;lie operating agreement wzs tinenforceabk. Therefore, Defendants failed to rake any triable issue of fact or law precluding summary judgment. Defendants cross-move to consolidate this action with another action before this Court- Jacobson Partners v. Charles Moore and Virginia Moore, Index No. 1I3226/20 1 1. Pursuant to NY CPLR $602, when actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. The standard for determining whether the actions involve common question of law or fact is if evidence that would be admissible for one action would also be admissible in the second action. Leeco Constr. Co. v. United States Liab. Ins. Co., 22 Misc. 3d 61 1 (N.Y. Sup. Ct. 2008). Both actions arise out of different facts and questions of law, and therefore consolidation is improper. In this matter the Plaintiff, Virginia Moore, is suing JP HHI, LLC, and Jacobson Partners and Benjamin Jacobson as agents of the LLC, to recover her unpaid distributions. Ms. Moore owns a membership interest in the LLC, and pursuant to the LLC operating agreement distributions may be made, but when done, distributions should be made to all members of the LLC according to their percentage interest. Defendants have conceded to these facts. Furthermore, the second action Jacobson Partners v. Charles Moore and Virginia Moore, Index No. 113226/2011, arises out of an alleged oral agreement or contract between Benjamin Jacobson and Charles Moore (Plaintiffs husband), partners of Jacobson Partners. Plaintiff was not a party to this contract. The plaintiff in action two alleges that the money owed to them by Charles Moore was fraudulently conveyed to Virginia Moore who was unjustly enriched. [* 5] When reviewiiig both actinns there are RO cwnmen questions of law or fact to be consolidated. Both actions are separate and different and as such should remain so. Therefore, the cross-motion to consolidate is denied. Defendants cross-move to amend their answer to assert the counterclaim and affirmative defense of fraudulent conveyances. Pursuant to NY CPLR Q 3025(b) a party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just. CPLR fj 3025(b). In accordance with the laws of New York a freely given leave is one granted absent prejudice or surprise resulting from delay. Ancrum v St. Barnabas Hosp., 301 AD2d 474,475,755 N.Y.S.2d 28 [lst Dept 20031. The First Department has consistently stated that Leave will be denied where the proposed pleading fails to state a cause of action, or is palpably insufficient as a matter of law . Thompson v Cooper, 24 AD3d 203,205, 806 N.Y.S.2d 32 [lst Dept 20051. The motion for leave to amend the answer to assert the counterclaim and affirmative defense of fraudulent conveyance is impreper to this action. This counterclaim and affirmative defense is not supported by any facts alleged in this action. Therefore, the assertion of fraudulent conveyance as a counterclaim and affirmative defenses in this action would be insufficient and it would not state a cause of action in which relief can be granted. Defendants should move to amend their answer in the second action Jacobson Partners v. Charles Moore and Virginia Moore, Index No. 1 13226/20 11, to assert the counterclaim of fraudulent conveyances, but as it is stated in this action it is improper. The cross-motion for leave to amend is thereby properly denied. [* 6] Accordingly, ?laintiff s motion for silixxary judgment pursuafit to CPLR $3212 is GRANTED. Defendants' cross-motion to consolidate and for leave to amend their answer are DENIED. , - I COUNTY CLERKS OFFICE NEW YORK

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