Siras Partners LLC v Activity Kuafu Hudson Yards LLC

Annotate this Case

Download PDF

Siras Partners LLC v Activity Kuafu Hudson Yards LLC 2018 NY Slip Op 32484(U) September 28, 2018 Supreme Court, New York County Docket Number: 650868/2015 Judge: Andrea Masley 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. INDEX NO. 650868/2015 [*FILED: 1] NEW YORK COUNTY CLERK 10/02/2018 09:37 AM NYSCEF DOC. NO. 668 RECEIVED NYSCEF: 10/02/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL PART 48 ---------------------------------------------------------------------------X SIRAS PARTNERS LLC, SAIF SUMAIDA, and ASHWIN VERMA; INDEX NO. 650868/2015 Plaintiffs, MOTION DATE 03/05/2018 -vACTIVITY KUAFU HUDSON YARDS LLC, 462-47011TH AVENUE LLC, SHANG DAI, ZENGLIANG "DENIS" SHAN, OILING YUAN, DANIEL DWYER, and DAI & ASSOCIATES, P.C., MOTION SEQ. NO. 011 DECISION AND ORDER Defendants, - and REEDROCK KUAFU DEVELOPMENT COMPANY LLC, SIRAS KUAFU L.P., ATHENA KUAFU LP, SIRAS KUAFU LAND HOLDINGS LLC, and BIFROST LAND LLC, Nominal Defendants. ----------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 011) 564, 565, 566, 567, 568, 569, 570, 571, 572, 573, 574, 575, 576, 577, 578, 579, 580, 581, 582, 583, 584, 585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598, 601, 602, 603, 605, 606, 607 .. 608, 609, 610, 611,612,613,614,615,616,617,619,647,648 SANCTIONS were read on this motion to/for MASLEY, J.: This decision addresses the portion of motion sequence number 011 in which defendants Activity Kuafu Hudson Yards LLC, 462-470 11 1h Avenue LLC, Shang Dai, Zengliang "Denis" Shan, and Oiling Yuan (collectively, Kuafu) seek sanctions for plaintiffs' alleged spoliation of We-Chat messages. An interim order, addressing the protective order prong of this motion, sets forth the relevant background information, which is incorporated here (NYSCEF Doc. No. 659). In the spoliation prong of this motion, Kuafu asks for an order awarding sanctions and/or an adverse inference against plaintiffs. Kuafu contends that the principals of 650868/2015 Motion No. 011 1 of 4 Page 1of4 INDEX NO. 650868/2015 [*FILED: 2] NEW YORK COUNTY CLERK 10/02/2018 09:37 AM NYSCEF DOC. NO. 668 RECEIVED NYSCEF: 10/02/2018 plaintiff Siras Partners LLC (Siras), individual plaintiffs Saif Sumaida and Ashwin Verma, violated their duty to preserve evidence--including phone-based We-Chat messagesby upgrading their phones prior to the commencement of this action or the dissolution proceeding. According to Sumaida and Verma, both stopped using We-Chat before tensions arose between the parties, and both "upgraded [his] mobile phone in early 2015, in the ordinary course" (Sumaida aff, ,-i 3 [NYSCEF Doc. No. 607]; Verma aff, ,-i 3 [NYSCEF Doc. No. 606]). Kuafu contends that plaintiffs' duty to preserve evidence in anticipation of litigation arose in mid-2014, when, at a partners' meeting to discuss the development project, Sumaida allegedly told defendant Shang Dai: "if [Dai] did not like the way he was handling the Project's development, [Dai] had two choices: ... deal with it, or ... sue him" (Dai aff, ,-i 6; see id. ,-i 7 ["Although we tried many times to resolve the partnership disputes, the response we received was always the same: 'so sue me.' "] [NYSCEF Doc. No. 591]). Plaintiffs deny that Sumaida told Dai or other principals of Kuafu "so sue me" (Sumaida aff, ,-i 4; see Verma aff, ,-i 4). A party seeking spoliation sanctions must show that: (1) "the party having control over the evidence possess an obligation to preserve it at the time of its destruction"; (2) "the evidence was destroyed with a culpable state of mind"; and (3) "the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [2015]). An obligation to preserve relevant evidence arises when a party "reasonably anticipates litigation"; that is, when a party "is on notice of a credible probability that it will become involved in litigation, seriously Page 2 of4 650868/2015 Motion No. 011 2 of 4 INDEX NO. 650868/2015 [*FILED: 3] NEW YORK COUNTY CLERK 10/02/2018 09:37 A NYSCEF DOC. NO. 668 RECEIVED NYSCEF: 10/02/2018 contemplates initiating litigation, or when it takes specific actions to commence Utigatioo" (VOOM HD Ho/diog' LLC ' EohoSto' Satemte LL C , 93 ADld 33. 43 [1 't Dept 2012]. citing Wb"ioke' UBS Warl>"'11 LLC. 220 FRO 212, 216 [SONY 2003], The Sedona Conte"'""'· Commeotny oo '-"gal Hold' The Trigg•< and Th• P•o""'· 11 Sedona Conf J 265 lFall 2010), available at http cl/WWW .the"'dooaooof•"'""'·"g/oontenVmi.OFite•/!egal_hold'-"'''- 201 o.pdf .). In Voom HD Holdings LLC, a duty to preserve arose when th~ defendant thceatened to tenninate the oontcacl lo email• aod th• "'""""' al'° e•tabU•hed that the defendaol w8' awa<e that tennioatlog the oootract "°"Id ra""' the plaiotiff to commeooe \/ligation (93 ADld at 4:µ14). A d<rty to P"'"'"'" h8' al'° beeO fo""d to h"'• beeo tcigge"'d when •'""""' e•tabli•h•d that a party notmed ao ad<eraa<Y that the party"°"" '°"'ult legal oouo"'l to'°"'""' oommeodog Utigatioo (,ee e.g. ocweo Loao secv<ing. LLC 'Ohio Pub Empioye" Rettrem.nt SY'.. 49 Mi.o 3d 1219(A), "5-6 lSUP Ct, NY county 20151). The oourt dec\io"' to fiod "a matte< of law that th• alleged cemack. •,o ,ue me,' tiigge"'d plaintiff•' duty to P""'"'" ce\e<ant e~deoOO uode< the ciccum'"""" pce,ented he" lo the a"'"""' of othe< •'"'""'·the court i' oompe\\ed to find that plaiotiffS' d<rty to P""'"'" cele<'nt e<idenoe oco"' on Febcua<Y 27, 2015 when the petition for dissolution was filed. Though oo ad<eme infecence oc ,,.,ctio"' a<• impo•ed "a matte< of \aw. th• i,,ue whethe< plaintiff5' ~olated a d<rty to P'""'"'" cete<aot e<ideooe wheo sumaida andio< Verna 'uP9caded" thei< mobile phoo•' lo "eaily 2015' "io th• ocdina<Y oou=" may be ,ubmitted to the ju<Y o< th• fact-finde< to detecmioe wheo a d<rty to P"'""'" W" Page 3 of 4 65086812015 Motion No. 011 3 of 4 INDEX NO. 650868/2015 [*FILED: 4] NEW YORK COUNTY CLERK 10/02/2018 09:37 AM NYSCEF DOC. NO. 668 RECEIVED NYSCEF: 10/02/2018 triggered and whether plaintiffs' acted with negligence or gross negligence in not maintaining or backing up their mobile phones at that time, and whether the information on those phones would be relevant to the parties' claims or defenses. Accordingly, it is ORDERED that the motion of defendants ACTIVITY KUAFU HUDSON YARDS LLC, 462-470 11TH AVENUE LLC, SHANG DAI, ZENGLIANG "DENIS" SHAN, OILING YUAN, DANIEL DWYER, and DAI & ASSOCIATES, P.C. for spoliation is denied. 9/28/2018 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: alA \Al'\ ANDREAMASLEY, ~ CASE DISPOSED GRANTED 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN ~ 650868/2015 Motion No. 011 NON-FINAL Dl~POSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT ~ D D OTHER REFERENCE Page 4 of 4 4 of 4

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.