Johnny Woo, LLC v Stevealann, Inc.

Annotate this Case

Download PDF

Johnny Woo, LLC v Stevealann, Inc. 2014 NY Slip Op 31578(U) June 18, 2014 Sup Ct, New York County Docket Number: 102292/10 Judge: Doris Ling-Cohan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. ANNED ON 612312014 [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY 34 PART - Index Number : 102292/2010 JOHNNY W00,INC. INDEX NO. vs. MOTION DATE STEVEALANN,INC. SEQUENCE NUMBER : 001 MOTIONSEQ.NO. VACATE - The following papers, numbered 1 to 2, on this motion to/for were read Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits 4 / - Exhibits d 4 I Ws). - Exhibits IW s ) . I Ws). Replying Affidavits Upon the foregoing papers, it i otiong de I L '< 3 2 A ~rri/cLLir ED COUNTY CLERK'S OFFICE NEW YORK , J.S.C. I 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE ........................... MOTION IS: ............................................... 0 CASE DISPOSED 0 ED 0DENIED 0 d O N - F i N A L D~SPOS~TION 0GRANTED IN PART 0C m E R c SUBMIT ORDER ] PPOINTMENT 0REFERENCE I [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: iAS PART 36 ........................................................................ X JOHNNY WOO, LLC and HAMDAN TURAN, Plaintiffs, Index No. 102292/10 - against- Motion Seq. No.: 001 & 003 STEVEALANN, INC.and STEVEN SADOFF, Defendants, -and- JOHN TURAN, Additional Counterclaim Defendant. FILED JUN 2 3 2014 COUNTY CLERKS OFFICE NEW YORK DORIS LING-COHAN, J.: Motion sequence numbers 001 and 003 are consolidated for disposition. The defendants Stevalann Inc, s/h/a Stevealann, Inc. and its president Steven Sadoff (defendants) move for an order vacating the jury demand (motion sequence number 001). The defendants also move, pursuant to CPLR 3212 (e), for an order: dismissing this action against Steven Sadoff, on the grounds that Steven Sadoff acted solely in his corporate capacity, as president of defendant Stevalann Inc.; and dismissing plahtiffs' second through tenth causes of action as legally insufficient as a matter of law, and severing for trial plaintiffs' first cause of action and defendants' counterclaims (motion sequence number 003). Plaintiffs Johnny Woo, LLC, and its principai Hamdan Turan (plaintiffs) commenced this action to recover a $100,000 deposit given to defendants in connection with a failed commercial 1 [* 3] sublease transaction. Plaintiffs allege that under the sublease, article 13, paragraph (e). thcy properly exercised their right to cancel the sublease, when defendants failed to obtain the overlandlord s written approval. Defendants allege that their delay in obtaining the overlandlord s written permission was occasioned by plaintiffs own delay in supplying tax returns and financial statements. Defendants also allege that the deadline for obtaining the overlancilord s consent was extended by inutual agreement. I n addition to breach of contract (first cause of action), the coinplaint also pleads causes of action for violation of Gcneral Business Law 5 349 (a) (second cause of action), fi-aud (third and fourth causes of action), breach oftlie duty of good faith and f air dealing (fifth cause 01 action), breach of express warranty (sixth cause of action), unjust enrichment (scventh causc oi action), negligence (eighth cause of action), conversion (ninth cause of action), and tortious interference with contracts (tenth cause of action). Defendants have counterclaiined against the plaintiffs, and added an additional counterclaim against defendant John l uran, as the president of .Iohiiiiy Woo 1 , I C for breach of a written personal guaranty and the sublease, In supp1-t of tlicir motion for sumniaiy judgnicnt, dcicndants argue that Steven Sadoff is not personally liable fbr Stevalaiin Inc. s debts, and that the second through tenth causes of action should be dismissed because this is a simple breach of contract case. I n opposition to the motion for summary judgment, plaintiffs argue that this is not a mere lalidlord tenant dispute and that the heart of the action is fraud, inisrepreseiilatioii, and tort. [T]he proponent of a sumnary juclgnient motion must inale a prima facie showing oi entitlement to judgment as a matter of law, tendering sufficient evidence to eliniiiiate any material issue of fact from the case (Snzulls vA./IZndu.r., Znc., 10 NY3d 733, 735 [2008] [internal 2 [* 4] , . B quotation marks and citation omitted]). The [flailure to make such showing requires denial of the motion. regardless of the sufficiency of the opposing papers ( Winegrad v N m York AIed C ti .. Ui7nl 64 NY2d 8 5 1. 853 [ 19851). Once this showing has been made, however, the burctcii shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues o f fact which require a trial of the action. I Mlere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufiicient for this purpose (Zuckermun v C ity of New Yoi.k, 49 NY2d 557. 562 [1980j). It is not the fiinction o f a court deciding a summary judgment motion to rnakc credibility determinations or findings of fact, but rather to identifji material triable issues of fiict (or point to thc lack thereof) (Vega v fiestani Constr. Covp., 18 NY3d 499, 5 0 5 [2012]). All ten causes of action against Steven Sadoff must be dismissed. It is well established that officers or agents of a company are not personally liablc on a contraci if they do not purport to bind theincelvics individually (Geor.gznhfalone & C o , Inc v fiicdei., 86 AII3d 406, 407-408, [lst Lkpt 201 11, uffd 19 NY3d 51 1 120121). Steven Sadoff, who signed tlie sublease only in his capacity as president of Stevalanii Inc.. cannot be held personally liable for Stevalanii Inc. s breach ofthe sublease. Steven Sadoff is entitled to summary judgnient since he establishcd that lie did not act in his individual capacity or coininit any tort outside the scope of his corporate capacity (Meycy.11 Murtin, 16 AD3d 632, 634 [2d Dept 20051). Other than coiiclusory statements that Steven Sadoff. either coinmitted individual tortious acts, or dominated and controlled Stevalann Inc., plaintiffs fail to allege particularized facts to warrant piercing of the corporate veil, so as to allow the claims against Steven Sadoff to continue ( f i c ~ s Hcimnpton Ji7ion Free t School 1)ist v S~~ndpobhlel d ~ c Inc . 16 NY3d 775, 776 [ZOl 11; Rcrrneli tB io LC;A1 I>iil( Ii B [* 5] Book FzC;zlndSP(',Ltd, 95 AD3d 736, 737 [lst Dept 20121). The second cause of action against Stevalanii 1nc. for violation of General Business Law $ 349 (a) must also be dismissed. General Business Law $ 349 (a) provides that "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the f~irnishing any service of in this state are hereby declared unlawful." 'I'he statute provides a private riglit of action to "any person who has been injured by reason of" such illegal conduct (General Ijusiness Law $ 349 [hJ) 1'0 ~ ~ c c c ~ ~ fassertya claim under General Business Law $ 349, "a plaintiff must ,illegc iill that a defendant has engaged in i1) consumer-oriented conduct that is (2) materially misleading and that ( 3 ) plaintiif suffered injury as a result of the allegedly deceptive act or practice" ( ( 'I/) of Net1 York v ~S~i20keS-IS~3irit.s Inc , 12 NY3d 616, 621 [2009]). In the instant case, plaint11 Con?, fail to demonstrate any conduct on the part of defendants that was consumer oricnlcd (( 'ity o/ N m York v Smokes-Spirifs.Com, Inc.. 12 NY3d 616, 623 [2009]; Oswego Lnhorer-s' L o c ~ i 211 l Pension Fund v M w i n e Midland Bank, 85 NY2d 20, 25 [ 1995). 'I'he third and fourth causes of action for fraud must be dismissed because plaintiffs fail to allege tortious conduct separate and distinct from their breach of contract claim (767 irYzii.d AIT LLC'1% C;ixblc & Finger. LLP, 8 AD3d 75, 75-76 [lst Dept 20041). Therefore, the fraud causes ol action are duplicative of the breach of' contract claim. 1,ikewise. the fifth cause of action for breach of the duty of good faith and h i r dealing must be dismissed as merely duplicative of the cause of action for breach of' contract (( 'retlr/ Sziznse Firs/ Roston v lJ/recl?t-AmericnFin. C'o , 80 AD3d 485, 488 [l" I k p t 201 11). 'I'he sixth cause of action for breach of an express warranty also must be dismissed. "A warranty is not a promise of performance, but a statement of present hct" (k'irst k i n k of the A m 4 [* 6] v A4o/or Cur Fzmfing, Inc . 257 AD2d 287, 292 [ 1St Lkpt 199q). linlilte a misrepresentatioii of future intent to perform, a misrepreseiit~~tioii present facts is collateral to the contract . . . and of therefore involves a separate breach of duty (id.). Here, the gravainan of plaintiffs claim does not include dcfcndants intentionally misrepresenting material facts about the sub-tenancy. M o r t m cr. as discussed abovc, plaintiffs fail to allege tortious conduct separate and distinct lroni their breach o+.contract claim. ? he seventh cause of action for unjust enrichment is barred under the rule that . the existence of a valid contract governing the subject matter generally precludes recovery in quasi contract for events arising out of the same subject matter (EBC I, 6ac. I) ( h l d ~ n t mSue. hs , cc! o . 5 NY3d 11 23 12005) ). I he eighth cause of action for negligence must be dismissed bccausc plaintiff s f ail to demonstrate a legal duty independent of tlie contract itself that has been violated (( lurkI. itzpi(rick. Inc v I,oiag Is X.R Co., 70 NY2d 382, 389 [19871: Wildenstein 5IIc%( 0, , 07 Inc IJ AD3d 488. 491-492 [ 1 I k p t 20121). Thc ninth cause of action for conversion must be dismissed. A conversion occurs whcn one intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person s right of possession (Colmiito I Vew York O r g m Donor hre~ii;ouk, Inc., 8 NY3d 43, 49-50 [2006]). The events underlying this litigation all took place in the course of the parties agreement, so that Stevalann Inc. s possession of tlie funds was not wilhout authority ( B B C Redt,v, Co. v I59 Emnuif I+ops. LL( , 106 AD3d 653.656 [ l Dept 2013)). The tenth cause of action for tortious interfkrencc with contract must be dismissed. 1 o 5 [* 7] establish a claim for tortious interference with contract the plaintiff must show the existence of its valid contract with a third party, defendant s knowledge of that contract, defendant s intentional and improper procuring of a breach and damages (White Plaim COLI^ & Apron JMC 1 1 C ii?tu 0 , C orp., I NY3d 422, 426 [2007]). Plaintiffs fail to demonstrate a factual issue : concerning whetlier Stevalann, Inc. committed independent torts or predatory acts. Finally. turning to the inotioii to strike the jury demand, in both the sublease, and the guaranty, plaintiffs, in writing, waived trial by jury. Thercf ore, the motion to strike the .jury demand must be granted. Plaintiffs may not at the same time rely upon the lease as the foundation of their claim for damages and repudiate the provisions by which they waived their constitutional right to a jury trial (Sherry Assocs. v Sherry-Netherlund, Inc. , 273 AD2d 14 1 1 I k p t 2000l) quoting Lecrv v Weitzner, 268 App Div 466, 468 11St Dept 19441). Accordingly, it is ORL3ERliD that defendant Stet cn Sadoff s motion for summary judgment is granted and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements to defeiidant Steven Sadoff, as taxed by the Clerk upon submission of an appropriate bill of costs: and it fLirther ORDERED that the Clerk is directed to enter judgment accordingly: and it is furtlxr ORDERED that the action is severed and continued against the reinainiiig defendant; aiid it is further ORDEKED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that movant s counsel serve a copy of this order with notice of entry Lipon the 6 [* 8] County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room lSS), who arc directed to iiiark the court's records to reflect the change in the caption; and it is furthcr ORDI?RED that the motion by Stevalanii, Inc. S/h/a Stevealann. Inc.'s for suiiiniary judgment is granted and the second, third, fourth, fifth, sixth, seventh, eighth. ninth, and tenth causes of action of the complaint are dismissed; and it is further OIIDERED that the first cause of action against Stevealann, Inc., and the counterclaims, are sebercd aiitl contiiiucd: and it is further OKI>L.,REI) that the def'ciidants' motion to strike the jury deinaiid is granted and the jury dcmand i:, stricken: and it is further ORDEIIED that, within 30 days of entry of this order, defendants' shall serve a copy of this order. with notice of entry. upon all parties, and the Clerk of the Trial Support Ot'licc (Room 158). who is directed to place this case on the appropriate nonjury calcndar. J:\Sumnial-y .ludginent\Woo. jack suter.wpd 7

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.