Motta v Ventura

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Motta v Ventura 2017 NY Slip Op 33380(U) April 26, 2017 Supreme Court, Westchester County Docket Number: Index No. 60251/16 Judge: Lewis J. Lubell Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 60251/2016 [*FILED: 1] WESTCHESTER COUNTY CLERK 04/26/2017 05:04 PM NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 04/26/2017 6/13/17 @ 9:15 9:15 a.m. SCP 6/13/17@ To commence day statutory statutory commence the 30 day time period for appeals appeals as of right right time period advised to . are advised you are 5513 [a]) , you · (CPLR 5513[a]), serve a copy copy of this this order, order, with with serve notice of entry, upon parties upon all parties _notice a YORK NEW YORK SUPREME COURT COURT OF THE STATE of NEW THE STATE SUPREME COUNTY OF WESTCHESTER WESTCHESTER · COUNTY - - - - - ' - - - - _.- -· . - - - - - ' - _·_- - - - - _:_- - - - - -.-x -------~-------.------~-----------------X ANTONINO MOTTA, ANTONINO & ORDER ORDER DECISION & DECISION Plaintiff, Plaintiff, Index 60251/16 Index No. 60251/16 -against -against - Sequence No.' No. - 2 Sequence SALVATORE VENTURA, SALVATORE VENTURA, nefendant. · Defendant. -----------------------~-------------X ------------- ---------- ------------ -i LUBELL, JJ.. this with this The following following papers considered in connection connection with were considered papers were . The 3215 (i) pursuant to CPLR Order pursuant second motion CPLR 3215 (i) plaintiff for an Order by plaintiff motion by second (ii) liability; default granting plaintiff judgment upon default as to liability; (ii) upon judgment ' plaintiff to granting with a full plaintiff with directing that defendant defendant immediately immediately provide provide plaintiff directing property the and proper accounting as to the financial condition. of property condition financial and proper accounting injunction at issue issue in this litigationi litigationj(iii) 'entering aa permanent permanent injunction (iii) ·entering in this at (iv) for the the relief sought in plaintiff's complaintj (iv) verified · complaint; plaintiff's verified. relief sought for setting the hearing on the damages, damages, attorney's attorney's a hearing down for a matter down the matter setting fees, costs to be awarded awarded to plaintiff: plaintiff: fees, and costs . PAPERS -PAPERS NOTICE MOTION/AFFIRMATION/EXHIBITS 1-5 NOTICE OF MOTION/AFFIRMATION/EXHIBITS OPPOSITION PAPERS PAPERS OPPOSITION NYSCEF' NYSCEF 5:-15 5:-15 NONE. NONE . '\'\ against Motta, against This is is an action by Antonino Motta, plaintiff, Antonino by plaintiff, an action .This unit eighteen defendant, Salvatore Ventura, the co-owner of an eighteen unit an co-owner Ventura, defendant, Salvatore New New Stre~t, residential property located 426 East 73~ Stre~t, New York, New 73~ E~st at residential pr6perty located relief various seeks York, (the "Premises"). Herein, plaintiff seeks various relief Herein, plaintiff York, (the "Premises!') . . against defendant defendant in connection connection with with defendant's alleged -.. defendant's alleged ~gainst ongoing abuse abuse of his current his current blatant, . ongoing .. blatant,. that position managing [the Pr~mises] Premises] that [the managing ..· . position own. plaintiff Antonino Motta and Ventura Ventura and Motta Antonino plaintiff has Among other wrongful actions, Ventura Ventura has wrongful actions, Among other with failed and refused to provide plaintiff with plaintiff provide failed and refused financial information, account to plaintiff plaintiff information, to account financial for monies received, of remit 50% - of or to remit monies received, for re~uired. He as required. plaint~ff as. balances to plaintiff monthly balances . monthly has and refused refused to provide information provide information failed -and has failed has concerning leases leases and 'and lease renewals. He has lease renewals. concerning 1 of 4 [*FILED: 2] WESTCHESTER COUNTY CLERK 04/26/2017 05:04 PM NYSCEF DOC. NO. 33 INDEX NO. 60251/2016 RECEIVED NYSCEF: 04/26/2017 ongoing on ongoing dollars on spent thousands of dollars spent tens of thousands the one work demolition and construction work in one of the ion construct and n demolitio s plaintiff without n apartments undertaken without plaintiffs undertake s· apartment has He n. permissio knowledge, no less his permission. He has knowledge , obtaining without engaged in such obtaining work without such work engaged repeated despite repeated required Moreover, despite permits. Moreover, required permits. and failed and has failed requests and demands, Ventura has demands, Ventura requests and wrongdoin g. refused rectify his wrongdoing. cease or rectify refused to cease Ventura's only Ventura's not only violate not (Complaint, "actions violate alleged "actions These alleged ~l). These t, ~1). (Complain the also the but partner, obligations to Mr. Motta as his business partner, but also business Motta obligation s parties the which into express terms of a management agreement into which the parties a managemen t agreement express terms material relies in material Plaintiff relies entered" Plaintiff ~2) in 2011. (Complain t, ~2) entered" (Complaint, support to agreement to support part on various managemen t agreement provision s of the management various provisions part on including sought including herein sought the relief herein and relief advanced and herein advanced claims herein the claims fees, attorney' s fees, injunction , attorney's monetary accountin g, an injunction, damages, an accounting, monetary damages, costs, and and expenses. expenses. denied Court denied the Court February 16, By 16, 2017, the Order of February Decision && Order By Decision found Court the so, doing so, plaintiff's Court found Upon doing motion. Upon identical first motion. plaintiff 's identical for necessary requireme nt necessary for that, met all of the requirement plaintiff met although plaintiff that, although defendant against defendant and against an award award of of a default judgment favor and his favor judgment in his a default an plaintiff 2014]), Dept (see Todd v. Green, 122 AD3d 831, 831-32 [2d Dept 2014]), plaintiff 831-32 831, AD3d Green, v. Todd (see g underlyin copy had failed to provide the Court with a copy of the underlying with Court provide to had failed [1st 417 AD3d written agreement (see Giordano v. Berisha, 45 AD3d 416, 417 [1st Berisha, v. Giordano (see written agreement assignmen t and assignment contract and Dept 2007] 2007] [failure [failure to include underlyin g contract include underlying Dept of rs of particula provide and inadequacy of assignor's affidavit to provide particulars and inadequac y of assignor' s affidavit the of denial warrants denial the the decedent warrants assigned to the decedent contract assigned the contract an to an prejudice to without prejudice motion]). Thus, the motion denied without was denied motion was Thus, motion]). otherwise re-applic ation. proper re-application. and proper timely and otherwise timely underlyin g This copy of the underlying a copy by a accompani ed by follows, accompanied motion follows, This motion 2011 11, 2011 March on parties management agreement executed by both parties on March 11, both by managemen t agreement executed (the "Management Agreemen t").. "Manageme nt Agreement") (the and motion and upon considera tion of the motion and consideration Now, review and upon review Decision Court's findings findings in its Decision upon the Court's Management and upon Agreement and Managemen t Agreement is oppositio n, it is 16, 2017, and being no opposition, there being and there & Order February 16, Order of February & hereby hereby to plaintiff as to ORDERED, that entered in favor favor of plaintiff judgment is entered that judgment ORDERED, further liabilitYi liability; and, it is further this copy of this ORDERED, that, days of service service of a copy ten days within ten that, within ORDERED, provide shall (1) Decision & Order with Notice of Entry, defendant (1) shall provide defendant Notice with Order & Decision financial the financial plaintiff and proper accountin g as to the proper accounting full and plaintiff aa full New Street, 73rd condition of the property located at 426 East 73rd Street, New East located condition of the property to owing and due York, New York ("Property") and all monies due and owing to monies and York, New York ("Property ") (2) and Agreement t plaintiff pursuant to the underlying Management Agreement and (2) underlyin g Managemen plaintiff pursuant to and legal and his legal that of his shall deliver and that review and plaintiff for his review to plaintiff deliver to shall relating or to financial or relating belonging records belonging and records books and advisors all books financial advisors 22 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 04/26/2017 05:04 PM NYSCEF DOC. NO. 33 INDEX NO. 60251/2016 RECEIVED NYSCEF: 04/26/2017 to the affairs affairs of the Property 'from 2011 to the present; Property ·from present; and, it is further, ORDERED, that, •within 'within ten days service of a copy of this ORDERED, days of service a · copy this Decision & Decision & Order Order with with Notice Notice of Entry, defendant defendant shall shall (1) (1) deliver deliver copies of all leases leases and (2)_ notify copies and lease lease renewals renewals to plaintiff; plaintiff; (2) notify tenants to make rent checks checks payable payable to both'owners; b _o th · owners; ((3) 3 )· provide provide tenants make rent plaintiff with required · monthly mont_hly statements; statements; {4) plaintiff with the · required' (4) account account .to to (5) remit plaintiff monies received plaintiff for monies received and and expended; expended; and and (5) remit 50% of monthly further monthly balances balances to _plaintiff; plaintiff; and, it is further ORDERED, that i_defendant shall cease cease and and desist from any .ORDERED, that;· defendant shall desist from any ongoing demolition work and new construction in a:ny any'· of the ongoing demolition work and new construction apartments express written apartments at the Property Property absent absent the express· written authorization authorization by plaintiff; plainti~f; and, it is further further ORDERED,I that, defendant defendant shall any further . ORDERED shall refrain refrain from from taking taking any further actions with Property or any accounts actions with respect respect to the Property any bank bank or other other accounts associated with associated with the Property Property · or · its management, management, maintenance, maintenance, operations, or otherwise, otherwise, absent absent express express written.authorization operations, written .authorization by by plaintiff; and, it jt is further further · plaintiff; ORDERED, that, defendant defendant shall ORDERED, shall refrain refrain from from wasting wasting or or harming harming any assets associated with Property; and, . the Property Property or any assets of or associated with the Property; it is further further ORDERED, that defendant agent .and and the ORDERED, defendant is hereby hereby removed removed as ~gent services,. of agent agent shall services shall be performed performed by by aa professional professional property property and, with certified . manager manager and, with respect respect to · financial financial matters; mat"ters ,· by by a a certified public accountant, each each _to . be chosen on public accountant, chosen and and engaged engaged by by plaintiff, plaint:i."ff, on seven days days notice defendant, and seven notice to defendant, and in the the interim, interiTIJ, plaintiff plaintiff shall shall perform said duties; duties; ~nd, it is further perform said further ORDERED, that, the parties directed to appear on June 13, · oRDERED, parties are directed appear on June 13, 2017 Settlement ·-Conference 2017 at 9:15 a.m. in the Settlement conferenc.e Part, Courtroom Courtroom 1600, Westchester Westchester County County Supreme Supreme Court; 111 Dr. Martih 1600, Martin Luther Luther King, Jr. Jr. Boulevard, Boulevard, White White Plains, New New York, to schedule schedule - an inquest ~nquest on on attorneys' :+'.ees fees (as allowed ·in in the Management damages, attorneys' (as allowed Management Agreement) Agreement) and cost. foregoing'Gonstitutes and Order Order of The foregoing -constitutes the Opinion, Opinion, Decision, Decision, and · the Court. White Plain9' YOrk Dated: White Plain§, New New. York April 201 Ap_ r i_l 20177 qb'tiL, _. qbr:-{...• 3 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 04/26/2017 05:04 PM NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 04/26/2017 David S. S. Douglas, Douglas, Esq. David & Berkey, Gallet Dreyer Dreyer & Gallet Berkey, LLP Attorney for Plaintiff Plaintiff Attorney th 845 Third Fl. Fl. Third Avenue, Avenue, 5th New York, NY 10022 New 10022 Salvatore Salvatore Ventura Ventura 4 Manger Manger _Circle Circle 4 Pelham Manor, NY 10803 Pelham I !.,· INDEX NO. 60251/2016 Salvatore Salvatore Ventura Ventura Box 8383" 8383 PO Box Pelham, NY 10803 ... 4 4 4 of 4

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