Automation Graphics, Inc. v SPS Worldwide, LLC

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Automation Graphics, Inc. v SPS Worldwide, LLC 2015 NY Slip Op 30670(U) January 5, 2015 Supreme Court, New York County Docket Number: 160722/13 Judge: Peter H. Moulton 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. [* 1] Supreme Court: New York County Part 57 -------------------- - -----------------x AUTOMATION GRAPHICS, INC. Plaintiff, Index No. 160122/13 -againstSPS WORLDWIDE, LLC, AMEEN NASSIRI (as President and Individually), CHUCK JUDGE, DAVID FINLEY, MELISSA YOBLEN, ROBIN NIEMAYER, SHAN PENCZAK, JENNIFER FRY, SUSAN HOWE, and CHRISTINA SPOLJARIC, employees and/or independent contractors for SPS Worldwide SPS, Defendants. --------------------------------------x Peter H. Moulton, Justice Motion sequence numbers 01 and 02 are consolidated for di sp osition. In this act i on plaintiff printing company alleges that defendants conspired with a now -d ec eased employee of plaintiff to defraud plaintiff of goods and services. This action mirrors a long -pending and trial-ready action brought by pla intiff in Civil Court under action") . Civil Court Index Defendants move grounds and for sanctions. No.: 30693/09 to dismiss the Plaintiff moves action with the Civil Court action. (the "Civil complaint Court on various to consolidate this [* 2] BACKGROUND Plaintiff Automation Graphics Inc . ("AGI") defendants SPS Worldwide LLC ("SPS"), Chuck Judge, independ~nt contractor of SPS, and Ira initially sued an employee or Schwartz, plaintiff's .deceased and allegedly disloyal employee, in Civil Court in 2009 . The Civil Court complaint alleges that Schwartz provided Judge with products generated by AGI and pocketed payments allegedly made by defendant s . for Defendants concede tha t SPS placed orders with Schwartz printed products . materials, but maintain they duly paid for those Defendants argue that they should not have to pay for the same products twice due to the actions of a rogue employee of plaintiff's. The complaint in Civil Court sought an accounting and "not less than $25,000 in damages." The Civil Court action proceeded, with di ff icul ty, through discovery. Plaintiff moved for discovery sanctions on at least two occasions. In a decision coincidentally issued by me in November 2013 while Supervising Judge in Civil Court, the Civil Court found that no further discovery was outstanding. After AGI filed a notice of trial in Civil Court it moved in November 2012 to transfer the action to Supreme Court pursuant to CPLR 325(d), asserting that it had discovered that its damages were greater than the $25,000 jurisdictional limit of Civil Court . In a decision dated May 3, 2013, 2 Justice Kenney denied the [* 3] removal mot ion, finding transfer the case. that plaintiff had waited too long to Justice Kenney found that plaintiff " kn ew and in fact admitted as early as 2010 , that the damages sustained as alleged in the complaint in the Civil Court action exceeded the j urisdictional limit of said Court." Undeterred by this order , in November 2013 plaintiff commenced the instant action. The complaint herein repeats the same three causes of action contained in the Civil Court complaint, and adds a poorly drafted cause of action for fraudulent conveyance . The final cause of action in the Supreme Court complain t is purportedly based on CPLR 3126, a provision of the CPLR that concerns discovery sanctions. As there has been no discovery in this action, this claim can only be based on defendants ' alleged discovery violations in the Civil Court action. Defendants brought a pre-answer motion plaintiff made its motion to consolidate . to dismiss, and These motions were put on hold as the court attempted without success to settle both this action and the Civil Cou r t action. The court now decides the two motions. DISCUSSION The motion to dismi ss is granted as there is another action pending in Civil Court. since 2009 . The parties have litig a ted that action Plaintiff ch os e to litigate i n that fo rum and put the 3 [* 4] case on the trial calendar in 20 12. Defendants in the Civil Court action are entitled to see that 2009 action come to a conclusion . In this Supreme Court individual defendants independent answer the action, who are contractors complaint plaintiff identified as of SPS. and may These well concerning their alleged roles plaint iff. defe ndants added require several new either employees or individuals have addi tionaJ yet to discovery in the alleged scheme to defraud Plaintiff blithely assures the court that the instant Supreme Court action is ready to be tried, discovery has has been might obtained cert ainly in Civil as all the necessary Court . Their disagree . The individual entitlement to diiclosure, and to bring dispositive motions , could delay trial of this action for another two or three years . If it wanted to bring this action in Supreme Court, and add additional parties, plaintiff should have done so long ago. Ju sti ce Kenney found that plaintiff was aware in 2010 that its damages might exceed $25,000. That finding collaterally estops any relitigation of plaintiff 's claim that it only discovered in December 2012 that its damages exceeded $25,000. (Mchwai v State Onivers itv of New York, Empire State Colleae, 248 AD2d 111, lv denied 92 NY2d 804 ·) Having been rebuffed Supreme Court, in its attempt to transfer the action to the plaintiff may not now seek another pathway to this court . The t1..vo additional causes of action present 4 in the instant [* 5] action also do not suffice to distinguish this action from the Civil Court action. The third cause of action, conveyance, does not state a claim. sounding in fraudulent The claim has not even the most rudimentary detail necessary to plead a fraud claim. (CPLR 3016; see Greenberg v Blake, 117 AD3d 68 3; Apt v Block 62? 2 Const. Corp., 10 Misc3d 1073[A] .) Indeed, with the exception of some conclusory statements about defendant Nassiri , the complaint is bereft of any factual allegations tying the individual defendants to any of the alleged causes of action. (&g Epst ein , & Weinstein v Shakedown Records, Levinsohn, Bodine , Hunvi t z Ltd ., 8 AD3d 34; DeRaffele v 210 - 22-230 Owners Corp . , 33 AD3d 752, l v denied 8 NY3d 814.) Plaintiff's fourth cause of action, 3126 , is utterly without merit. the one founded on CPLR Plaintiff makes no attempt in its motion papers to cite authority that could establish the viability Moreover, as of a cause of action brought under this provision . discovery has not been conducted in this action, the claim can only refer to disclosure violations .i n the Civil Court action, an action where the court outstanding. As has already ruled that no discovery this issue concerns proceedings remains in a different court, and has a lr eady been decided in the November 2013 order of the Civil Court , NYCRR § the fourth cause of action is frivolous under 22 130-1 (c) (1), as it is "completely without merit in lav-1 and cannot be supported by a modification, or reversal reasonable argument of existing 5 law." for The an extension, court awards [* 6] defendant SPS claim . $1000 towards its costs in defending against this The lack of viability of this claim should have been evident to plaintiff's counsel, and he shall bear the full cost of this sanction . CONCLUSION For the action is sanctions reasons stated, The granted . against defendants' branch is plaintiff of motion to dismiss defendants' granted to the plaintiff's counsel shall pay defendant SPS $1000 frivolous claim. with the Civil motion this seeking extent that for bringing a The motion by plaintiff to consolidate this action Court action is denied . This consti t utes the decision and order of the court . ..,.,. ,.._ .·:/ (.' Dated: January 5, I ; L?- /-~---~ 2015 ~ J.S.C. JjON,. PEfERH. MOULTON 6

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