Smith Gold & Diamond, Inc. v Towne
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Smith Gold & Diamond, Inc. v Towne 2011 NY Slip Op 32486(U) September 15, 2011 Supreme Court, Nassau County Docket Number: 007494-11 Judge: Timothy S. Driscoll 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 - ST ATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court ------------------------------------------------------------------- JI SMITHTOWN GOLD & DIAMOND, INC., d/b/a NASSAU GOLD BUYR' S; CASH MY STUFF, INC. & VIJA Y VERMA, Plaintiff, -against- ALICIA TOWNE alka ALICIA KEATING, TRIAL/IAS PART: 20 NASSAU COUNTY IndeJi No: 007494Motion Seq. Nos. 1 and 2 Submission Date: 9/7/11 Defendant. -------------------------------------------------------------------J( The following papers having been read on these motions: Order to Show Cause, Affidavit in Support, Affirmation in Support and Exhibits................................................................ Affidavit in Opposition and Exhibits................................................................ Notice of Cross Motion, Affirmation in Support, Affidavit and EJihibits..... fied by Ths matter is before the Cour for decision on 1) the Order to Show Cause , Inc. , d//a Nassau Gold Buyers ("Nassau ), Cash My Plaintiffs Smithtown Gold & Diamond 2011 Stuff, Inc. (" Cah") and Vijay K. Verma (" Vijay ) (collectively " Plaintiffs ) on May 20 and 2) the cross motion filed by non- par JPMorgan Chase Ban (" Chase ) on September 2 , 2011. By Order dated July 25 2011 (" Prior Order ), the Cour directed Plaintiffs ' Counsel to serve Chase with a copy of its Order to Show Cause , in light of the fact that the relief sought by Plaintiffs relates to located at a Chase ban1e Plaintiffs ' Counsel served Chase , as directed by the Cour, and Chase fied a cross motion seeking fuds and propert with the Order to Show Cause leave to intervene, and other relief. For the reasons set forth below , the Cour grants Plaintiffs ' motion and 1) directs Chase Towne to liquidate immediately the curently frozen account (" Account" ) of Alicia A. Towne (" [* 2] fuds to Karina E. or " Defendant" ) ending in the numbers " 4249, " and deliver the liquidated ); 2) directs Defendant AHciaTowne Alomar; Esq. , counsel for Plaintiffs (" Plaintiffs ' Counsel" aIa Alicia Keating to appear at the Chase branch located at 42 West Main Street New York (" Smithtown Branch") on October 5, 2011 at 10:00 a. , Smithtown, , for the purose , where the inventorying the merchandise located in the safe deposit box maintained by Towne merchandise of Cash is curently located; 3) directs that the contents of the safe deposit box by the afer being inventoried against the daily cash sheets for the respective days represented that, if Defendant Alicia Merchandise , shall be delivered to Plaintiffs ' Counsel; and 4) directs Towne alka Alicia Keating does not appear at the Smithtown Branch of Chase on ' Counsel shall conduct the October 5, 2011 at 10:00 a. m. as directed herein, Plaintiffs inventory in her absence. The Cour denies Chase s cross motion. BACKGROUND Relief Sought A. Chase ) to liquidate the Plaintiffs move for an Order 1) directing JP Morgan Chase (" Account") of Alicia A. Towne ("Towne " or "Defendant") ending in curently frozen account (" the numbers "4249" , and deliver the liquidated fuds to Plaintiffs ' Counsel; 2) directing Towne inventorying the to appear at the Chase Smithtown Branch on a date certain for the purose of , where the merchandise of merchandise located in the safe deposit box maintained by Towne Cash (" Merchandise ) is curently located; and 3) directing that the contents of the safe deposit box , afer being inventoried against the daily cash sheets for the respective days represented by the Merchandise , be delivered to counsel for Plaintiffs. Chase , a non-par, cross moves for relief including an Order permitting Chase to intervene and discharging Chase from any liabilty B. The Paries ' to the paries to this action. History The Cour presided over a prior lawsuit between these paries , titled Diamond, Inc., d/b/a Nassau Gold Vijay K. Verma, Cash My Stuff Inc. , Smithtown Gold Alicia A. Towne jp Morgan Buyers, Amit Verma, Suraj Kumar, Ashu K. Vaid, Smithtown Associates, LLC and 10 (" Related Chase Bank, N.A., d/b/a Chase Bank Nassau County Index Number 13935- Action ). By decision dated November 19, 2010 (" Related Decision ), the Cour 1) granted the motion of defendant Amit Verma and dismissed the complaint against him; and 2) granted the motion of defendants Vijay K. Verma, Cash My Stuff, Inc. and Smithtown Gold & Diamond [* 3] Inc. , d//a Nassau Gold Buyers and dismisses the complaint against them. l In so ruling, the Cour held as follows: The Court grants the motion of Amit Verma to dismiss the Complaint against him based on the Court' s conclusion that the factual allegations in the Complaint do not establish a cause of action cognizable at law as to Amit. The Court considered numerous factors in reaching this conclusion , including the fact that Amit was not a par to the Agreement and is not alleged to have made any misrepresentations to Plaintiff. In ruling on the motion of Defendants Vijay, Cash and Nassau, the Court must address at the outset, the fact that Plaintiff alleged in the Complaint that Defendant Vijay was . knowingly in possession of, and used to his advantage , a stock certificate that contained the forged signature of Plaintiff. This is , of course , a very serious allegation. Plaintiff now concedes that the signature on that certificate is , in fact, hers. She furter provides a rather cavalier, scattered affdavit that demonstrates little appreciation for the seriousness of her initial allegation , and makes allegations of other forgeries by Vijay. Tellngly, Plaintiff does not, however, provide an affdavit of the expert who, she alleges , is prepared to testify as to these other forgeries. The Court concludes that Defendants Vijay, Cash and Nassau are entitled to dismissal of the Complaint based on the Court' s determination that Plaintiff has not alleged facts that would support the causes of action in the Complaint, which are fundamentally premised on Plaintiffs theory that Vijay promised to make her a parer. The Court considered numerous factors in reaching that conclusion , including 1) the fact that Plaintiff received a salar and bonus, consistent with her being an employee rather than an owner , 2) the numerous affdavits of employees attesting to the fact that they received their paychecks from Vijay, and Vijay made all the final decisions with respect to the business , 3) the absence of any documentation corroborating Plaintiffs claim that Vijay promised to make her a parer, 4) Vijay s execution and personal guarantee of the Lease , 5) the Court' s conclusion that a) the Agreement canot serve as documentation supporting the existence of a parership, as the Agreement presumes that there was an agreement of a parership, a proposition that the Court has rejected; and b) relying on the Agreement as proof of the alleged agreement to make Plaintiff a parer would be improper bootstrapping, 6) the Court' s skepticism regarding the Transcript, given the lack of details regarding the circumstances under which the Transcript was prepared , 7) the Court' s conclusion that the Transcript, assuming that it is reliable and accurate , does not support ofVijay s statement that " 1 am the owner - 100% owner here Plaintiffs position in light (Tr. at p. 3), and Vijay s continual denials of Plaintiffs claims regarding her position in the companies and her accusations of forgeries and other improper conduct by Defendants, that V ijay made false arguendo 8) Plaintiffs failure to demonstrate that, even assuming representations to her , she relied on those representations to her detriment, and 9) Plaintiffs failure to allege facts that would warant the finding of a fiduciar relationship between her and Defendants. In light of the foregoing, the Court concludes that the Complaint does not state a cause of action against Vijay. Moreover, Plaintiff has failed to allege facts demonstrating that the owners of Nassau and Cash exercised complete domination over those entities in the transaction at issue or that they abused the privilege of doing business in the corporate form , thereby perpetrating a wrong that caused injury to plaintiff. Accordingly, even assuming that the Complaint did Plaintiffs ' Counsel affrms that Towne previously discontinued the causes of action against defendants Smithtown Associates , LLC and JP Morgan Chase in the Related Action. [* 4] contain viable causes of acti(;m against Vijay for breach of contract, fraud and the other substantive claims , dismissal of those causes of action against Nassau and Cash would be appropriate. Prior Decision at pp. 16- 17. In support of the motion sub judice Verma affirms that the fuds in the Account consist of money belonging to Cash , which Verma wrongfully took from Defendants , based on Verma unsupportable claim that she had an ownership interest in Cash. Verma makes reference to Towne s affdavit in the Related Case (Ex. B to Verma Aff. in Opp. ) in which Towne admitted to transferrng Cash fuds to her personal account to prevent its removal by Vijay In addition , the Merchandise in Verma s safe deposit box is propert (id at 47). belonging to Cash. On August 4 2010 , Verma and Towne entered into a stipulation (" Stipulation ) (Ex. C to Alomar Aff. in Supp. ) which the Cour so-ordered on August 16 , 2010. Pursuant to the Stipulation , the paries agreed that 1) designated Towne Chase Accounts would be unozen liquidated and then closed; 2) the liquidated proceeds would be deposited into an escrow account Escrow Account" ) of Plaintiffs ' Counsel; 3) Towne and counsel for the paries would report to the Chase Smithtown Branch to inventory the Merchandise , and Towne would deliver any other merchandise of Cash in her possession to Plaintiffs; 4) the Merchandise would be inventoried against the daily Cash " cash sheets; " 5) the Merchandise would then be weighed , analyzed and sorted; and 6) the Merchandise would then be delivered to a refinery company where it would be refined , and payment received from the refinery company would be added to the fuds in the Escrow Account. Verma alleges that Towne refused to sign the necessar documents to effectuate the Stipulation and , accordingly, is seeking the Cour' s directive that Towne comply with the terms of the Stipulation. Plaintiffs ' Counsel confirms that Towne has refused to sign the necessar consent forms to liquidate the Accounts. Plaintiffs ' Counsel affirms that the Accounts have a balance of $38 481.12 and the Merchandise in Towne s safe deposit box is believed to have a value of over $111 000. Plaintiffs ' Counsel submits that , in light of the Related Decision , Towne has no ownership interest in the fuds in the Accounts. In opposition , Towne inter alia 1) disputes that she has failed to sign the necessar consent forms , and asserts that she reported to the Chase Smithtown Branch at a designated time but Plaintiffs did not appear; and 2) reaffirms her contention , as alleged in the Related Action that she has an ownership interest in Cash. [* 5] RULING OF THE COURT A person may intervene as of right in an action involving the disposition of propert v. McLean Wells Fargo Bank where that person may be adversely affected by the Judgement. 70 AD. inter alia 3d 676 (2d Dept. 2010), citing, 1012(a)(3) and CPLR Velazquez Decaudin 49 AD.3d 712 , 717 (2d Dept. 2008). In addition , a cour may permit a person to intervene , inter alia, wht:n the person s claim or defense and the main action have a common question oflaw or fact. Id. at 676- 677, citing CPLR 1013. Whether intervention is sought as a matter of right or a matter of discretion is of little practical significance , as a motion for leave to intervene should be granted where the intervenor has a real and substantial interest in the v. Board of Trustees of Inc. Id. at 677 , citing, inter alia , Berkoski outcome of the proceedings. Vil. of Southampton 67 AD.3d 840 (2d Dept. 2009). In exercising its discretion , the cour shall consider whether the intervention will unduly delay the determination of the action or prejudice v. Information Display Reliance Ins. Co. ofN.Y. Id. citing the substatial rights of any par. Tech. 2 AD.3d 701 (2d Dept. 2003). The Cour denies the cross motion by Chase to intervene , and for other relief, based on the Cour' s conclusion that Chase will not be adversely affected by the Cour' s Order directing Defendant Alicia Towne a/a Alicia Keating to comply with the Stipulation, to which Chase is not a par. Moreover , intervention wil unduly delay the resolution ofthis action and prejudice Plaintiffs ' rights, in light of the Related Decision in which the Cour rejected Defendant' claims, and the Defendant' s repeated delays in complying with the Stipulation. In light of the Related Decision , and the proof before the Cour that Defendant has failed to comply with the cour-ordered Stipulation , the Cour grants Plaintiffs ' motion and accordingly, it is hereby: ORDERED , that JP Morgan Chase shall immediately liquidate the curently frozen account of Alicia A Towne ending in the numbers " 4249, " and deliver the liquidated fuds to Karna E. Alomar , Esq. , counsel for Plaintiffs; and it is fuer ORDERED , that Defendant Alicia Towne a/a Alicia Keating shall appear at the Chase branch located at 42 West Main Street, Smithtown , New York on October 5, 2011 at 10:00 , a. , for the purose of inventorying the merchandise located in the safe deposit box maintaned by Towne , where the merchandise of Cash is curently located; and it is fuher ORDERED , that the contents ofthe safe deposit box belonging to Defendant Alicia Towne aIa Alicia Keating, after being inventoried against the daily cash sheets for the --( [* 6] respective days represented by the Merchandise , shall be delivered to Plaintiffs ' Counsel; and it is fuer ORDERED , that if Defendant Alicia Towne alka Alicia Keating does not appear the Smithtown Branch of Chase on October 5, 2011 at 10:00 a. m. as directed herein, at Plaintiffs ' Counsel shall conduct the inventory in her absence. All matters not decided herein are hereby denied. This constitutes the decision and order of the Cour. DATED: Mineola, NY September 15 2011 HON. TIMOTHY S. DRISC lS. ENTERED SEP 19 2011 NASSAU COUNTY COUN' fV CLERK' OFFICr
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