Trice v Tag Ct. Sq. LLC

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Trice v Tag Ct. Sq. LLC 2021 NY Slip Op 30617(U) March 3, 2021 Supreme Court, New York County Docket Number: 106846/2010 Judge: Andrew Borrok 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. [* 1] INDEX NO. 106846/2010 NYSCEF DOC. NO. 434 RECEIVED NYSCEF: 03/03/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ANDREW BORROK IAS MOTION 53EFM Justice ---------------------------------------------------------------------------------x ELLIOT TRICE, MYA HAN, ILONA ROSS, ENRICO FERRANTE, MATTHEW GRAY, LAUREN GRAY, GREGORY SULLIVAN, JUAN AZCONA, FEDERIQUE HENRIOTAZCONA, JENNIFER OK, LETICIA TIANGCO, ELIZABETH LEE, IRIS GOLD, AMY BASSIN, ALBERT ARANEO, AMY KIMARANEO, TOSHIKO TAKAHARA, RYAN RACUYA, VIRGILIO BARCO, JASON HOMER, TROY ALLEN, ADDIS GETAHOUNALLEN, DAVID MATIK, LOUIE RUEDA, THOMAS LINDSLEY, WILLY CHANG, ANDY HONG, EMILY GIORDANO, ANTIPAS DIMAKOPOULOS, MICHAEL SHAPIRO, DIANA SHAPIRO, MARK GOLD, JAMES GUNN, KELLY CONATY, EDNA INESCAJUMBAN, HANIFA SCULLY, CHRISTOPHER SCULLY,SUNDARJAGANNATH,MANJULAJAGANNATH, CHRYSSO KAIZER, RACHEL WORTMAN, JOSH WORTMAN, DAVID QUINTAVALLE, RAYMOND WONG, NUBIA RUEDA, VINCENT SPENCER, MATTHEW WISHNOW, JARETT LIVINGSTON, FATIMA MASTOUR, JUAN SIERRA, CHRISTOPHER KELLEY, PEGGY ANN JAYNE, CECILA CUNNINGHAM, MICHAEL AVALLONE, BEAU MITCHELL, DEEPA MANWANI, MARIN DASKALOV, ELEONORA NIKOLOVA, CHRISTOS ATHANASIOU, ANASTASIA ATHANASIOU, STEPHEN PEPPER, SHELDON CURTIS, ASHLEY FLOTO, KRISTOPHER ABDELMESSIH, ALAN LAM, TRINI LAM, JAMES ROHAN, KEITH KANCAR, SOPHIA DRAMITINOS, MARY DRAMITINOS, MARY ZOTOS, OLLIE JOHNSON, KATHLEEN JOHNSON, AEON STANFIELD, LISA STANFIELD, CHARLES COHEN, HEE IM, BERT BUSTAMANTE, ALICIA BUSTAMANTE, THOMAS DEMSKER, ADELE DEMSKER, STUART DEMSKER, BARBARA BERNARD, DANIEL HALLMAN, ADRIANA ACEDO, STEPHEN KIM, HSUAN LEE, CHRIS NICODERMO, ZACHARY BERGER, ZMBER ZIEFER, JEFFREY WEISS, THEODORUS SANDFORT, DOUGLAS ADELMAN, LYUDMILA SHTEYNBAUM, THOMAS BARNES, YI ZHOU XIAO, CHI CHENG PUI, JULIA ROSHKOW, STEVE SALZMAN, ROCKFORD CHUN, KUEICHEN FANG, PETER UNGUREANU, MATTHEW SPIEGEL, MALKA SPIEGEL, ANDREW GERLE, MARIE POON, BO LIM MUI, ALBERT LEATHERMAN, ADRIA JOVER, LAURA ROIMERSHER, WENDY WILSON, DANIEL WU, ANNIE LAMMERS, SEAN LAMMERS, JARRED KIRSCH, ALEJANDRA KIRSCH, STEPHEN FOX, ALEXANDER CHAN, AMY CHAN, KATHLEEN CARLISLE, HUN KIM, JAVOR STOLAROV, WILLIAM ROSENBERG, PAUL HILEPO, TOM KNOTEK, ERIC BENAIM, TOVIT 106846/2010 Motion No. 014 INDEX NO. MOTION DATE 106846/2010 01/05/2021 MOTION SEQ. NO. _ _ _0_1_4_ _ DECISION + ORDER ON MOTION Page 1of8 1 of 8 [* 2] INDEX NO. 106846/2010 NYSCEF DOC. NO. 434 RECEIVED NYSCEF: 03/03/2021 BENAIM, ANDERS DAHLSTROM, SALME DAHLSTROM, PETER JOHNSON, BUM WON, GEORGE VARSOS, CARMEN VARSOS, ELINOR ANKER, LALEO LLC,MING WONG, MICHAEL CLARKE, ANA SOKOLOFF, BETSY ASHTON, MARK JOHNSON, JANET COOK, MARY KASARIS, JULIE WON, MARGARET LEE, JEREMY FRIEDEL, CAROL HUANG, DARIUS TENCZA, MARINA TENCZA, MARIANNE HOUTENBOS, PIETER HOUTENBOS, KIMBERLY CONATY, SOOK KIM, YUNG KIM, MARVIN LIPKIND, TANIA LIPKIND, ADAM COLOMA, ARRIS LOFTS CONDOMINIUM, Plaintiff, -vTAG COURT SQUARE LLC,TAG QUART SQUARE MANAGER LLC,ALLEN SILVERMAN, ANDREW SILVERMAN, ALEXANDER SILVERMAN, WILLIAM KOGAN, THOMSON AVE APARTMENTS LLC,ANDALEX GROUP, COSTAS KONDYLIS & PARTNERS, MICHAEL PERAGINE, ETTINGER ENGINEERING ASSOCS, WSP CANTOR SEINUK, CANTOR SEINUK GROUP INC, PAVARINI MCGOVERN LLC,STRUCTURE TONE LLC,STRUCTURE TONE LLC,PACE PLUMBING CORP, GEIGER ROOFING CO INC, DRYVIT SYSTEMS INC, STEGLA GROUP INC, AAG CONSTRUCTION CORP, SUNSHINE GROUP LTD, GAF MATERIALS CORPORATION (3RD PARTY DEFENDANT), ELITE FLOORS, INC.,RCC CONCRETE CORP., TOPLINE CONTRACTING, INC.,PIONEER WINDOWS INC.,PJ MECHANICAL CORP. (FOURTH-PARTY-DEFENDANTS), COMPONENT ASSEMBLY SYSTEMS INC.,SPECTRUM PAINTING CORP. (THIRD THIRD-PARTY DEFENDANT), Defendant. ---------------------------------------------------------------------------------x COMPONENT ASSEMBLY SYSTEMS INC. Third-Party Index No. 595364/2014 Plaintiff, -againstINSULATION CONTRACTORS INC., THOMAS J. DONNELLY, INC. Defendant. --------------------------------------------------------------------------------x The following e-filed documents, listed by NYSCEF document number (Motion 014) 413, 414, 415, 416, 417,418,419,420,421,422,423,424,425,426,427,428 were read on this motion to/for CONTEMPT 106846/2010 Motion No. 014 Page 2 of 8 2 of 8 [* 3] INDEX NO. 106846/2010 NYSCEF DOC. NO. 434 RECEIVED NYSCEF: 03/03/2021 Plaintiff Board of Managers of the Arris Lofts Condominium (the Board) moves by order to show cause to find defendants Tag Court Square LLC (the Sponsor) and its principals, Alexander Silverman, Andrew Silverman and Allen Silverman (the Silvermans and the Sponsor, collectively, the Sponsor Defendants) in contempt for failure to comply with this court's Decision and Order dated November 10, 2020 (the Prior Decision; NYSCEF Doc. No. 417). The Prior Decision required the Sponsor Defendants to: within forty-five (45) days from the date of entry of this Order the Sponsor Defendants shall fully comply with the terms of the [Parties'] Settlement Agreement by (a) paying their portion of the cash payment to plaintiff required to be paid under the Settlement Agreement; (b) executing and delivering the requisite releases contemplated under the Settlement Agreement in the form attached as Exhibit B to the July Agreement; (c) execute and deliver to plaintiff the lease negotiated between plaintiff and the Sponsor Defendants; (d) execute and deliver to plaintiff an assignment of each of the storage cages transferring ownership to plaintiff; and (e) take any such additional action as may be required to effectuate the Settlement Agreement including but not limited to executing a stipulation of discontinuance (id. at 4). The Sponsor Defendants were also required to pay the Board's attorneys' fees and costs in connection with the Prior Decision within 15 days ofreceipt of the invoice (id. at 5). To the extent that the parties could not agree on the amount of reasonable legal fees incurred, the matter was to be referred to a Special Referee to hear and determine (id.). 106846/2010 Motion No. 014 Page 3 of 8 3 of 8 [* 4] INDEX NO. 106846/2010 NYSCEF DOC. NO. 434 RECEIVED NYSCEF: 03/03/2021 Discussion Pursuant to Judiciary Law § 753(A)(3), A. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases ... 3. A party to the action or special proceeding, an attorney, counsellor, or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution can not be awarded for the collection of such sum except as otherwise specifically provided by the civil practice law and rules; or for any other disobedience to a lawful mandate of the court. A finding of civil contempt requires (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that it appear with reasonable certainty that the order has been disobeyed, (3) the party to be held in contempt must have had knowledge of the court's order although it is not necessary that the order actually have been served upon the party, and (4) prejudice to the right of a party to the litigation must be demonstrated (Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015], citingMatterofMcCormickvAxelrod, 59NY2d574 at583 [1983]). Here, the Prior Decision was a lawful order of the court that expressed an unequivocal mandate directing the Sponsor Defendants to comply with the terms of a certain Settlement Agreement and pay the Board's attorneys' fees related to that prior motion. The Board timely submitted invoices to the Sponsor Defendants for legal fees totaling $17 ,226.50 on November 16, 2020 (NYSCEF Doc. No. 418). It is undisputed that the Sponsor Defendants have not made any of the requested payments (NYSCEF Doc. Nos. 419-422, 424). Nor have the Sponsor Defendants otherwise satisfied their obligations under the Prior Decision after receiving notice of the same by the Notice of Entry dated November 18, 2020 (id.; NYSEF Doc. No. 397). Finally, the Board 106846/2010 Motion No. 014 Page 4 of 8 4 of 8 [* 5] INDEX NO. 106846/2010 NYSCEF DOC. NO. 434 RECEIVED NYSCEF: 03/03/2021 is prejudiced by the Sponsor Defendants' failure to adhere to their settlement obligations, which have been outstanding since their execution of the Stipulation of Settlement dated July 19, 2019 - approximately 1 year and 8 months ago (see NYSCEF Doc. No. 400). The Sponsor Defendants offer no plausible excuse for their failure to comply with the Prior Decision in their opposition papers and in fact, propose to impermissibly vary the terms of settlement that were previously agreed upon. Their willful and contumacious utter failure to comply with the order entered in November 2020 and to otherwise comply with the Stipulation of Settlement of 2019 warrants a finding of contempt and appropriate sanctions. Accordingly, the motion for contempt is granted and the Sponsor Defendants are hereby held in civil contempt. The Sponsor Defendants may purge their contempt in accordance with the Prior Decision and within 20 days from the date of this order by: "(a) paying their portion of the cash payment to plaintiff required to be paid under the Settlement Agreement; (b) executing and delivering the requisite releases contemplated under the Settlement Agreement in the form attached as Exhibit B to the July Agreement; ( c) execute and deliver to plaintiff the lease negotiated between plaintiff and the Sponsor Defendants; (d) execute and deliver to plaintiff an assignment of each of the storage cages transferring ownership to plaintiff; and ( e) take any such additional action as may be required to effectuate the Settlement Agreement including but not limited to executing a stipulation of discontinuance" (NYSCEF Doc. No. 417 at 4). Failure to comply with the foregoing will result in a fine of $1000 a week upon the Sponsor Defendants until their contempt is purged. The Board is also entitled to recover its reasonable attorneys' fees and costs incurred in connection with the instant motion (see Judiciary Law § 106846/2010 Motion No. 014 Page 5 of 8 5 of 8 [* 6] INDEX NO. 106846/2010 NYSCEF DOC. NO. 434 RECEIVED NYSCEF: 03/03/2021 773), and the issue ofreasonable legal fees and costs both with respect to the Prior Decision and the instant motion is referred to a Special Referee to hear and determine. Accordingly, it is ORDERED that plaintiff's motion for contempt is granted and the Sponsor Defendants are hereby held in civil contempt; and it is further ORDERED that the Sponsor Defendants may purge their contempt within 20 days from the date of this order by: (a) paying their portion of the cash payment to plaintiff required to be paid under the Settlement Agreement; (b) executing and delivering the requisite releases contemplated under the Settlement Agreement in the form attached as Exhibit B to the July Agreement; (c) execute and deliver to plaintiff the lease negotiated between plaintiff and the Sponsor Defendants; (d) execute and deliver to plaintiff an assignment of each of the storage cages transferring ownership to plaintiff; and (e) take any such additional action as may be required to effectuate the Settlement Agreement including but not limited to executing a stipulation of discontinuance; and it is further ORDERED that the Sponsor Defendants' failure to purge their contempt in accordance with the foregoing will result in a fine of $1000 a week upon the Sponsor Defendants until their contempt is purged; and it is further 106846/2010 Motion No. 014 Page 6 of 8 6 of 8 [* 7] INDEX NO. 106846/2010 NYSCEF DOC. NO. 434 RECEIVED NYSCEF: 03/03/2021 ORDERED that the plaintiff shall submit a proposed judgment against the Sponsor Defendants, jointly and severally, regarding the portion of the cash payment due plaintiff under the Settlement Agreement within 7 days from the date of this order; and it is further ORDERED that that portion of the plaintiffs motion that seeks the recovery of attorneys' fees and costs for Mtn. Seq. Nos. 013 and 014 is severed and the issue of the amount of attorneys' fees and costs that plaintiff may recover against the Sponsor Defendants is referred to a Special Referee to hear and determine; and it is further ORDERED that counsel for the plaintiff shall, within 30 days from the date of this order, serve a copy of this order with notice of entry, together with a completed Information Sheet, 1 upon the Special Referee Clerk in the General Clerk's Office (Room 119), who is directed to place this matter on the calendar of the Special Referee's Part for the earliest convenient date to hear and determine the amount of reasonable attorneys' fees and costs; and it is further ORDERED that such service upon the Special Referee Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further 3/3/2021 Available on the Court's website at www.nycourts.gov/supctmanh under the "References" link on the navigation bar. 1 106846/2010 Motion No. 014 Page 7 of 8 7 of 8 [* 8] INDEX NO. 106846/2010 NYSCEF DOC. NO. 434 RECEIVED NYSCEF: 03/03/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ANDREW BORROK, J.S.C. ~ CASE DISPOSED GRANTED D DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN 106846/2010 Motion No. 014 ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 8 of 8 8 of 8

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