Meagher v Doscher
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Meagher v Doscher 2015 NY Slip Op 32814(U) September 16, 2015 Supreme Court, Suffolk County Docket Number: 060807/2014 Judge: Jerry Garguilo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: SUFFOLK COUNTY CLERK 09/16/2015 12:23 PM 1] NYSCEF DOC. NO. 70 INDEX NO. 605850/2015 RECEIVED NYSCEF: 09/16/2015 SHORT FORM ORD ER-SUA SPONTE INDEX NOS. 060807/2014 068379/2014 608165/201 s 605850/20 IS SU PREME COURT - STATE OF NEW YORK COMMERCIAL DIVISION IAS PART 48 - SUFFOLK COUNTY PRESENT: HON. JERRY GA RGUILO SUPREME COURT JUSTICE AMENDED ORDER INDEX NO.: 060807/2014 MICHAEL MEAGHER, MICHAEL MEYER, and STEPHEN SMITH, Plaintiffs, -against- FINAL SUBMITTED DATE: 9/ 15/ 15 MOTION SEQ#006 &007 MOTION: MD INDEX N0.:068379/2014 FINAL SU BMITTED DATE: 9/15/15 MOTION SEQ#O l 2, 014, 015, 0 16 MOTION: MD DREW DOSCHER, Defendant, INDEX NO.: 608165/2015 FINA L SU BMITTED DATE: 9/ 15/ 15 MOTION SEQ#OOl , 002, 003 MOTION: MD and 148 SOUTH EMERSON PARTNERS, LLC, INDEX NO.: 605850/2015 Nominal Defendant. MICHAEL J. MEYER, individually and derivatively on behalf of 148 SOUTH EMERSON AS SOCIATES, LLC .. Plaintiff, FINAL SU BMITTED DATE: 9/15/15 MOTION SEQ#OOI, 002 MOTION: MD Attorneys for Meagher, Meyer and Smith: KA YE SCHOLER LLP 250 WEST 55TH STREET NEW YORK, NY 10019 ATTN: JAMES CATTERSON , ESQ. and Atto rney for Drew Doscher: MICHAEL MEAGHER & STEPHEN SMITH, Nominal Plaintiffs, -against- DEV EREAUX LAW GROUP D/B/A MICHAEL J. DEVEREAUX & ASSOC., PC 39 BROADWAY, SUITE 910 NEW YORK, NY 10006 Receiver: 148 SOUTH EMERSON , ASSOCIATES, LLC and DREW DOSCHER, Defendants. Attorney for C ha rles Russo, Esq. NIXON PEA BODY, LLP 50 JERICHO QUADRANGLE, SU ITE 300 JERICHO, NY 11753 ATTN: SETH L. BERMAN CHARLES RUSSO, ESQ. RUSSO KARL WIDMAIER & CORDANO, PLLC 400 TOWN LINE RD HAUPPAUGE, NY 11788 [* 2] MEAGHER, MEYER, SMITH v. DOSCHER, ET ANO INDEX NOS.: 06080712014 anrl 06837912014 PAGE2 Multo Utilius Est Pa uca lndonea Efundere Qua m Multis Inutilibus Romines Gravari (4 coke, 20). "Or it is more useful to pour forth a few useful things than to impress men with many useless things." Mr. Justice Brei tel noted " it is ancient and undisputed law that courts have an inherent power over the control of their calendars, and a disposition of business before them, including the Order in which disposition will be made of that business. Plachte v. Bancroft, inc., 3 A.D.2d 437, 161 N. Y.S.2d 892 (I 957). Mr. Justice Breitel's wisdom guides this Court to tap into those inherent powers, albeit responsibly. to control the course of this litigation. As noted in Langan v. The First Trust and Deposit Company, 27 App Div. 700, affirmed296 N.Y. 1014, " it is our view that courts of record (Judiciary Law§ 2) are vested with inherent powers, wh ich are neither derived from nor dependent upon express statutory authori ty, and which permits such courts to do all things reasonably necessary for the administration of justice within the scope of their jurisdiction. The so-called " Inherent Powers Doctrine" has been described as follows: under the Inherent Powers Doctrine a court has all powers reasonably required to enable a court to perform efficiently its judicial funct ions, to protect its dignity, independence and integrity, and to make its lawful actions effective. These powers are inherent in the sense that they exist because the Court exists; the Court is, therefore, it has the powers reasonably required to act as an efficient court. Inherent judicial powers derived not from Legislative grant of specific constitution provision, but from the fact it is a court which has been created, and a court requires certain incidental powers in the nature of things. Carrigan, Inherent Powers of the Courts, Nation College of the State Judiciary, Reno Nevada [ 1973] (Matter of People v. Little, 89 Misc.2d 742, 745, affirmed 60 A.D.2d 797). A court's inherent powers are derived from the very fact that the court has been created and charged with certain duties and responsib ilities. They are those powers which a court may call upon to aid in the exercise of its jurisdiction~ and the administration of justice, and in the preservation of its own independence and integrity, such powers have been recognized since the days of the Inns of Court in common law English Jurisprudence (Eichelberger v. Eichelberger, 582 S.W.2d 395, 398, 399 [Tex.] cited in Gabrelian v. Gabrelian, 108 A.D.2d 445, 489 N.Y.S.2d 914. The manner in which this litigation has been conducted necessitates the Court to pu ll in the reigns and create order from the chaos that has been cast upon it to the detriment of the parties. All designated motions are hereby sua sponte advanced to September 15, 2015 and are determined as set forth herein. A little history is in order. In its decision of February 19, 2015 the Court noted the following: [* 3] MEAGHER, MEYER, SMITH v. DOSCHER, ET ANO INDEX NOS.: 06080712014 and 06837912014 PAGEJ Before the Court are petitions involving two Limited L iab ili ty Corporations. More particularly, 148 South Emerson Partners, LLC and 148 South Emerson Associates, LLC. Sometime in the past, four sophisticated business persons, M ichael Meagher, Michael Meyer, Stephen Smith and Drew Doscher purchased a va luable piece of property in Montauk, New York, and formed an entity known as 148 South Emerson Partners, LLC to take title. It is not disputed that upon formation the four individuals, noted hereinabove, each enjoyed a 25% equity stake in the "Partners" entity. The property is waterfront and was improved with a structure. Thereafter, the four men decided to open and operate a restaurant to be named "The Sloppy Tuna." The LLC ( 148 South Emerson Associates, LLC) was formed to own, manage and operate The Sloppy Tuna. The prior decision of this Court, in substance, found that the four (4) individuals named immediately above are equal equity holders (25%) of the real estate. Furthermore, the Court found and held the restaurant business (The Sloppy Tuna) was and is owned equally by Michael Meyer and Drew Doscher through their equity stake in the LLC known as 148 South Emerson Associates, LLC. Since the Court's earlier determination the parties have filed a barrage of motions including the following: ( l) Two motions seeking dismissal by and on behalf of Mr. Doscher and his related interests. (2) A motion seeking sanctions by and on behalf of Mr. Doscher and related entities. (3) Two petitions seeking intervention and related relief. (4) Motions made by Mr. Doscher seeking to vacate, reargue and renew the prior order of this Court. (5) Motions by Mr. Doscher and his related entities to disqualify Plaintiffs counsel in two separate actions. (6) Five separate petitions seeking additional disqual ification of Plaintiffs counsel, counsel fees, dismissal, sanctions aga inst another party for seeking sanctions and to vacate a judgment and/or judgments. (7) Discovery applications. These petitions present the Court with thousands of pages of material. In short, there are fifteen ( 15) petitions, not to mention petitions by the duly appointed Receiver. Additionally, the Court has been bombarded with correspondence from all sides. The current posture of litigation breaks down into four ( 4) separate actions: (I) The action involving the entity know as the ·'partners action" (Real Estate) (Index No. 060807/20 14) commenced February 2, 2014. (2) An accounting action involving the business known as The Sloppy Tuna (Index No. 068379/2014), commenced October 9, 2014. (3) An eviction action (Index No. 605850/20150), commenced June 3, 2015. (4) An action by the Defendant, Mr. Doscher ( Index No. 608165/2015), commenced July 29, 20 15. [* 4] MEAGHER, MEYER, SMITH v. DOSCHER, ET ANO INDEX NOS.: 06080712014 and 06837912014 PAGE4 The eviction action noted hereinabove (605850/2015) has been calendared for a summary hearing on October 26, 2015 at 11 a.m. An issue to be heard by the Court concerns the existence or non-existence of a leasehold interest in favor of the Associates entity d/b/a The Sloppy Tuna. The document which purports to be a lease was presented subsequent to the Court's determination in February of thi s year. From a practical standpoint a determination of no leasehold interest in favor of the business, The Sloppy Tuna, w ill lead to an eviction of the business. On the other hand, a find ing of a viab le leasehold interest w ill require the continuation of the litigation going back in time and forwa rd in time. A ll parties have d isclosed to the Court the compellingly lucrative nature of the business known as The Sloppy Tuna. It is estimated that approximately Four Million Dollars ($4,000,000.00) sits in the operating account of the business. Counsel for Mr. Meyer in the presence of counsel for Mr. Doscher and the Receiver requested an interim distribution of monies as none have been distributed. In what the Court perceives as a seige mentality, Mr. Doscher rejected the suggestion claiming that several years of taxes remain unfiled and unpaid. It is somewhat puzzling that Mr. Doscher would rely on the outstanding tax issue when throughout the litigation he has maintained complete and competent management of The Sloppy Tuna. He has also maintained the absolute lack of interest and/or management by Mr. Meyer. Therefore, the Court, sua sponte, and an exercise of its inherent powers orders an immediate di sbursement of Seven Hundred Fifty Thousand Dollars ($750,000.00) to Mr. Meyer and Mr. Doscher. All motions and cross motions are DENIED, without prejudice. It should be noted that from strictly a procedural standpoint, the Defendant (Doscher) has routinely failed to comp ly with the Parts Rules requiring a pre-motion conference. However, the Court will not simply stand on ceremony. The matter has proceeded to date w ith virtually no progress toward an amicable resolution. In particular, during a conference with all parties, the Court suggested a formula to be used by the parties in an effort to reach a resolution. By way of telephone, the Defendant (Doscher) through counsel notified the Court that there w ill be no settlement/resolution of this matter. The Court determines that the matters should proceed as set forth hereinafter. Therefore, it is ORDERED ADJUDGED AND DECREED that all motions are DENIED without prejudice pending the outcome of the summary proceeding matter pending at Index No. 605850/2015. As noted, that matter is currently scheduled for October 26, 2015 at 11 a.m. Jn recognition that is black letter law that disclosure is unavailable as a matter ofright in summary proceedings and leave of the court must obtained to conduct disclosure. N.Y. CPLR 408; Smilow v U/rilch, 806 N.Y.S.2d 392, 395. To obtain leave of the court, a petition must demonstrate "ampl e need'' for the request of discovery id.; Matter ofShore, 109 A.D.2d 842, 843 (2nd Dept. 1985). Ample need requires a showi ng that the infonnation requested is carefully tailored and is likely to clarify the disputed facts. New York University v. Farkus, [* 5] MEAGHER, MEYER, SMITH v. DOSCHER, ET ANO INDEX NOS.: 06080712014 and 06837912014 PAGES 468 N.Y.S.2d 808, 811-12. As noted hereinabove the issue involving the existence and/or non-existence ofa lease shall be summarily determined. Although, as noted hereinabove that the hearing on the summary proceeding is currently October 26, 2015 at 11 a.m., the Court now modifies that date and it is ORDERED that the summary proceeding be heard on October 8, 2015 at 2 p.m. It is further, ORDERED ADJUDGED AND DECREED that the petitions of the Receiver, Charles C. Russo, Esq. for compensation shall be returnable on the 30th September, 2015. Any party opposing the petitions must submit any an all opposition on or before September 23, 2015 . The Receiver may reply on or before the return date thereof. The foregoing constitutes the decision and ORDER of this Court. Dated: September 16, 2015
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