Richardson v Pascarella

[*1] Richardson v Pascarella 2007 NY Slip Op 51132(U) [15 Misc 3d 1143(A)] Decided on June 5, 2007 Supreme Court, Onondaga County Greenwood, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 5, 2007
Supreme Court, Onondaga County

Kylie Richardson and Irene's Sweet Thoughts Bakery, L.L.C., Plaintiffs,

against

Serafina Pascarella, Antonio Pascarella, Individually and Antonio Pascarella d/b/a the Last Stop Bakery, Defendants.



2006-6176



Ralph S. Alexander, Esq.

For Plaintiffs

David W. Pelland, Esq.

For Defendants

Donald A. Greenwood, J.

This matter concerns two cases that were consolidated by Order of this Court dated January 2, 2007. The actions involve the alleged breach of a lease for space to be used as a bakery. Antonio Pascarella initiated an action in City Court against the plaintiffs with respect to an alleged breach of the lease. In that compliant Pascarella sought, inter alia, past due rent, damage to equipment, expenses incurred and damage to his business and reputation. Plaintiff Kylie Richardson then on behalf of herself and Irene's Sweet Thoughts Bakery, filed a summons and complaint in Supreme Court in September of 2006 against Pascarella's wife, Serafina, alleging fraud, eviction, conversion, as well as tortious interference with the lease contract. The defendants have moved for summary judgment to dismiss various portions of the complaint against them, to compel discovery and to amend their pleadings. The motion to compel discovery has previously been resolved by stipulation. The plaintiffs have cross-moved to [*2]dismiss the defendants' affirmative defenses.

Defendants' Motion To Dismiss

The defendants first move pursuant to CPLR 3211 and 3212 to dismiss and for summary judgment to dismiss the complaint of plaintiff Irene's Sweet Thoughts Bakery, Inc. on the ground that the entity is not properly organized and existing pursuant to Limited Liability Law §202(a). In support of their motion, the defendants provide an affidavit of Frances Nestasia, one of the tenants to the subject lease, along with Richardson, and allegedly a member of the limited liability company. In her affidavit, she indicates that she believes that no meetings have been held of the entity since October of 2003 and that "as best [she] can recall" she was contacted by the New York State Department of Taxation with respect to unfiled tax reports and that she executed what she believed to be documents required to dissolve the company. She provides no documentation of dissolution, however. In addition, the defendants offer a purported search of the records of the New York Department of State conducted in February of 2007, long after this action was commended, showing the status of the LLC to be "inactive", with no further information being provided. The law is well settled that as the movants, the defendants are required to establish through proof in evidentiary form that they are entitled to judgment as a matter of law. See, Loveless v. American Ref-Fuel Co. Of Niagra, LP, 299 AD2d 819 (4th Dept. 2002). The Nestasia affidavit fails in that regard since it is not unequivocal or specific with respect to a dissolution, nor does it provide supporting documentation. Likewise, the alleged documentation from the Department of State is insufficient inasmuch as this internet search appears to have been conducted sometime after the action was commenced and the information is not in admissible form for this Court to consider. For a dismissal on the ground that the action on behalf of Irene's Sweet Thoughts Bakery is barred by documentary evidence, such a motion may be only be granted where the documentary evidence utterly refutes the factual allegations conclusively establishing that a claim cannot be sustained as a matter of law. See, Goshen v. Mutual Life Insurance Co. of New York, 98 NY2d 314 (2002). The documentation fails to meet that burden. As such, the defendants' motion to dismiss the complaint as it relates to plaintiff Irene's Sweet Thoughts Bakery, LLC is denied.

The defendants next move to amend their fifth cause of action contained in the original complaint initiated in City Court. The defendants had previously moved to amend their complaint in City Court to allow the action to proceed there due to the fact that the cause of action originally seeking $50,000 exceeded the jurisdictional limit of the court. By decision dated March 16, 2005, Syracuse City Court Judge Thomas W. Higgins, Jr. granted the motion and amended the cause of action to allege damages in the amount of $5,250.00. Where a previous court order sets damages in the ad damnum clause and no appeal is taken, an application for an increase in the ad damnum clause cannot be granted. See, Rodriguez v. Baylor , 64 AD2d 567 (1st Dept. 1978). As such, the defendants' motion to amend the fifth cause of action is denied.

Plaintiffs' Cross-Motions

Plaintiff cross-moves to dismiss defendants' affirmative defenses and counterclaims. On this motion, the plaintiff bears the burden of establishing that the affirmative defenses are without merit as a matter of law. See, Santilli v. Allstate Ins. Co., 19 AD3d 1031 (4th Dept. 2005). The first affirmative defense alleges that to the extent that the plaintiffs' amended [*3]complaint seeks to raise additional causes of action and/or damages against the defendants, such relief is barred by the existence and the continuance of the prior City Court action, which was consolidated with the pending Supreme Court action by this Court. The order of consolidation, however, merged all issues into a single action and the effect is to unite and merge all the different actions together in the same manner as if the different causes of action involved had originally been joined in a single action. See, Sommer v. Kenin, 58 NYS2d 536 (1945); see also, Vandermark v. Novickey, 187 Misc. 733 (1943). As such, defendants' argument that the existence of the City Court action bars any additional claims has no support in the law. Moreover, the plaintiffs timely amended their complaint without leave of court. This Court's order dated January 2, 2007 ordered that the defendants' motion to dismiss the original complaint was withdrawn without prejudice and the defendant was thereafter required to interpose an answer within ten days after service of notice of entry of the order pursuant to CPLR §3211(f). Prior to the expiration of that time, the plaintiffs served their amended complaint and properly did so without leave of court, pursuant to CPLR §3025(a), which provides that a party may amend his pleading once without leave of court, either within twenty days after its service or at any time before the period for responding to it expires. See, CPLR §3025(a). As such, the plaintiffs timely amended their complaint as of right. See, STF Management Development, Inc. v. New York State Department of Taxation and Finance, 254 AD2d 409 (2d Dept. 1998). As such, the motion to dismiss the defendants' first affirmative defense is granted.

Plaintiffs move to dismiss the second affirmative defense that the amended complaint fails to state a cause of action because Irene's Bakery and Serafina Pascarella are not signatories to the lease. The allegations contained, however, in the amended complaint allege not only breach of the subject lease, but also fraud, conversion and tortious interference with the subject lease. As such, the plaintiff Irene's Sweet Thoughts Bakery, LLC and the defendant Serafina Pascarella's status as non-signatories to the lease has no relevance to those causes of action and as such, that affirmative defense is dismissed inasmuch as the plaintiffs have met their burden of establishing that the affirmative defense is without merit as a matter of law. See, Santilli, supra .

The plaintiff moves to dismiss the defendants' fourth affirmative defense that the claims are barred by the statute of limitations. The amended complaint alleges that the causes of action for breach of contract, fraud, conversion and tortious interference with contract occurred beginning in May of 2003, during negotiations concerning the subject lease and continued after the execution of the lease in July of 2003. The statue of limitations for the commencement of breach of contract and fraud actions are six years. See, CPLR §213. As such, those causes of action were timely. The amended complaint alleges that the allegations of conversion against the defendants occurred in October of 2003, when the defendants "locked out" plaintiffs from the leased premises and caused the plaintiff to be evicted therefrom. The statute of limitations for a conversion claim is three years. See, CPLR §214(3). Inasmuch as the original complaint was filed on September 18, 2006, therelation back doctrine allows the claim asserted against the defendants in the amended filing to relate back to claims previously asserted originally for statute of limitation purposes. See, Schiavone v. Victory Memorial Hospital, 292 AD2d 365 (2d Dept. 2002). As such, that claim was timely, as is the claim of tortious interference with a contract which has a three year statute of limitations as well. See, Shared Communication Services of ESL, Inc. v. Goldman, Sachs & Co., 38 AD3d 325 (1st Dept. 2007). The plaintiffs' [*4]motion to dismiss the fourth affirmative defense is therefore granted.

Plaintiff next moves to dismiss the defendants' fifth and seventh affirmative defenses (which are also denominated as the first and third counterclaims) on the grounds that they are duplicative and fail to state a cause of action. The fifth affirmative defense and counterclaim alleges that plaintiff Richardson harassed defendants, causing emotional distress, while the seventh affirmative defense and counterclaim breached the lease and caused disruptions to the defendants' business and the two are not duplicative. In addition, the Court is required to view the allegations in the light most favorable to the defendant, as the party opposing this motion. See, Poulakis v. Town of Orangetown, 29 AD3d 882 (2d Dept. 2006). The defendants have sufficiently alleged, as defenses and counterclaims, causes of action against the plaintiff and as such, the motion to dismiss these affirmative defenses/counterclaims is denied.

The defendants' sixth affirmative defense alleges that Serafina Pascarella cannot be held liable for her acts because she was not a party to the lease and instead, the spouse and employee of Antonio Pascarella. As was discussed previously, the allegations in the amended complaint with respect to Serafina Pascarella allege a tortious interference with the contract and not a breach of contract and as such, this affirmative defense is dismissed.

The plaintiff also moves to dismiss the defendants' second counterclaim seeking sanctions and attorney's fees based upon the assertion that the action is frivolous. Attorneys fees and sanctions are permitted by Rule 130.1(d) and CPLR §8303-a to penalize specific frivolous conduct. See, 22 NYCRR 130.1(d); see also, CPLR §8303-a. The court, in its discretion may award attorney's fees and sanctions. However, a party is not entitled to such relief as a matter of right and it may not be pleaded as a distinct cause of action; a party may apply for such relief by motion upon the happening of specific conduct. See, Yankee Trails, Inc. v. Jardine Insurance Brokers, Inc., 145 Misc 2d 282 (1989). A counterclaim for attorney's fees and sanctions based upon the assertion the action is frivolous is improper. See, id. As such, the motion to dismiss that counterclaim is denied.

Finally, plaintiffs seek an order compelling defendants' acceptance of their reply to the defendants' counterclaims. CPLR §3012(d) provides that upon the application of a party, the court may extend the time to appear or plead or compel the acceptance of a pleading untimely served upon such terms as may be just and upon a showing of reasonable excuse for delay or default. See, CPLR §3012. On or about December 14, 2006 defendants served their verified answer with counterclaims, with plaintiffs' reply being due on or about January 9, 2007. An extension was granted to the plaintiffs and there apparently was a misunderstanding as to whether the extension was until January 19, 2007 or January 26, 2007. The reply was served on January 25, 2007. Thereafter, on February 1, 2007, defense counsel rejected and returned the reply as untimely, stating no other reasons. Even if the extension was until January 19, 2007 as the defendants claim there was only a six day delay and there has been no prejudice. See, Santana v.

Prospect Hospital, 84 AD2d 714 (1st Dept. 1981). As such, the plaintiffs' motion to accept the late reply is granted.

NOW, therefore, for the foregoing reasons, it is

ORDERED that the defendants' motion to dismiss the compliant as it relates to plaintiff [*5]Irene's Sweet Thoughts Bakery is denied, and it is further

ORDERED, that the defendants' motion to amend the fifth cause of action is denied, and it is further

ORDERED, that the plaintiffs' motion to dismiss the first, second, fourth and sixth affirmative defenses is granted, and it is further

ORDERED, that the plaintiffs' motion to dismiss the fifth and seventh affirmative defenses/first and third counterclaims is denied, and it is further

ORDERED, that the plaintiffs' motion to dismiss the second counterclaim is granted, and it is further

ORDERED, that the plaintiffs' motion to accept its late reply is granted.

ENTER

Dated: June 5, 2007

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice