Trueforge Global Mach., Corp. v Viraj Group
Annotate this CaseDecided on December 14, 2009
Supreme Court, Nassau County
Trueforge Global Machinery, Corp., Plaintiff,
against
Viraj Group a joint venture and/or association of corporations and other business entities consisting of VIRAJ USA INC., VIRAJ IMPOEXPO Ltd, VIRAJ FORGINGS LTD, VIRAJ PROFILES LTD, VIRAJ ALLOYS LTD, VSL WIRES Ltd. and other business entities, not presently known, and identified herein as John Doe 1 through 10, Defendants.
1846/08
Antonio I. Brandveen, J.
The plaintiff moves for an order to compel the defendants to produce Neeraj Kochhar for deposition. The plaintiff's attorney states, in an affirmation dated July 20, 2009, the defense presented a witness for deposition who had virtually no knowledge of the facts of the underlying action. The plaintiff's attorney points out Kochhar is the principal of the defendant business entities, and a necessary and material witness with respect to a deposition. The plaintiff's attorney points to the affidavit dated July16, 2209, by president of the corporate plaintiff, in support of the plaintiff position for compelling the production of Neeraj Kochhar for deposition. The defense opposes the plaintiff's motion. The defense counsel states, in an affirmation dated August 27, 2009, the alleged [*2]written agreement is unenforceable because the October 25-26, 2005 exchange of email between the parties' principals are insufficient to satisfy the requirements of the Statute of Frauds. The defense counsel states any parol evidence, including deposition testimony by Kochhar is irrelevant to this litigation. The defense counsel asserts the plaintiff's motion is meant to harass, annoy and prejudice the defense.
The plaintiff's attorney reiterates, in a reply affirmation dated September 10, 2009, the defense presented a witness for deposition who had virtually no knowledge of the facts of the underlying action. The plaintiff's attorney points out Kochhar is the principal of the defendant business entities, and a necessary and material witness with respect to a deposition. The plaintiff's attorney maintains Kochhar's deposition is not harassment. The plaintiff's attorney contends the Statute of Frauds is not a bar to the action.
The defense cross moves for summary judgment on the ground the plaintiff's alleged agreement that the defendants would pay the plaintiff a "finders fee" is unenforceable since it fails to satisfy the requirements of the Statute of Frauds, under General Obligation Law § 5-701 (a) (10). The defense attorney states, in an affirmation dated August 27, 2009, the defense presented an accountant, who testified at the deposition. The defense attorney asserts the finders fee must be set forth in a writing or there must be a written objective means to determine the finders fee.
The plaintiff's attorney points, in an affirmation dated September 10, 2009, to the affidavit dated September 9, 2009, of the president of the corporate plaintiff, and the plaintiff's September 10, 2009 memorandum of law, and states there are numerous questions of fact in the underlying action. The plaintiff's attorney asserts the defense refusal to provide relevant documents which the defense controls or to produce an individual with knowledge of the facts prohibits summary judgment. The plaintiff's attorney avers the Statute of Frauds is not a substantive defense. The plaintiff's attorney maintains basic principles of equity prevent the defense from utilizing the Statute of Frauds as a defense. The plaintiff's attorney contends there are issues of fact which prevent granting summary judgment.
The defense attorney states, in an affirmation dated September 17, 2009, the plaintiff's opposition to summary judgment is insufficient. The defense indicates there is no triable issue of fact.
The Court has carefully reviewed and considered all of the parties' papers with respect to the motion and cross motion. A corporation has the legal right to select the person they believe would be a person with knowledge of the matters to be addressed during a deposition. The plaintiff has not met its burden of showing the defense frustrated discovery by the witness the defense produced at the deposition here. The defense has presented a witness at the deposition with knowledge of the matters to be addressed during a deposition. Under CPLR 3212(b), a motion for summary judgment "shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof [*3]submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." "The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Summary judgment is a drastic remedy that is awarded only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hosp., 68 NY2d 320, 325; Andre v. Pomeroy, 35 NY2d 361). Summary judgment is the procedural equivalent of a trial (Museums at Stony Brook v. Village of Patchogue Fire Dept., 146 AD2d 572). Thus the burden falls upon the moving party to demonstrate that, on the facts, it is entitled to judgment as a matter of law (see, Whelen v. G.T.E. Sylvania Inc., 182 AD2d 446). The court's role is issue finding rather than issue determination (see, e.g., Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395; Gervasio v. Di Napoli, 134 AD2d 235, 236; Assing v. United Rubber Supply Co., 126 AD2d 590). Nevertheless, "the court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated" (Gervasio v. Di Napoli, supra, 134 AD2d at 236, quoting from Assing v. United Rubber Supply Co., supra; see, Columbus Trust Co. v. Campolo, 110 AD2d 616, aff'd 66 NY2d 701). If the issue claimed to exist is not genuine, and, therefore, there is nothing to be resolved at the trial, the case should be summarily decided (see, Andre v. Pomeroy, 35 NY2d at 364; Assing v. United Rubber Supply Co., supra). The defense has not shown its entitlement to judgment as a matter of law. There are triable issues of fact here.
Accordingly, the motion and cross motion are denied.
So ordered.
Dated: December 14, 2009
E N T E R:
______________________________
J. S. C.
FINAL DISPOSITIONNON FINAL DISPOSITION XXX
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
