Hutcherson v HVCA, INC.

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Hutcherson v HVCA, INC. 2021 NY Slip Op 33288(U) May 25, 2021 Supreme Court, Nassau County Docket Number: Index No. 611653/2018 Judge: David P. Sullivan 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 INDEX NO. NO. 611653/2018 611653/2018 FILED: NASSAU COUNTY CLERK 06/10/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 130 RECEIVED NYSCEF: NYSCEF: 05/26/2021 05/26/2021 SUPREME COURT- STATE OF NEW YORK PRESENT: HON.DAVIDP. SULLIVAN, Supreme CourtJustice. ·-------------- ·------. ---------------. _. ·------------- .------ ·x· STEPHON HUTCHERSON, !AS/TRIAL PART 22 NASSAU COUNTY Plaintiff, Motion Seq. No. 002, 003 Index No; 611653/2018 Motion Submitted: 05/19/2021 -againstHVCA, INC., BASSER KAUFMAN, INC., HOME GOODS and THE TJX COMPANIES, INC., Defendants; - .------------- .-------------- ·------ .----· ·----------· -------· -X. HVCA, INC; and BASSER KAUFMAN; INC., Third-Party Plaintiff, -againstMARC ELEFANT,PETER KALKANIS, DR. SADY RIBEIRO, SELECT CHIROPRACTIC & PHYSICAL THERAPY; PLLC, SELECT REHABILITATION,ALL COUNTY, LLC, NY SURGERY CENTER QUEENS, . RYAN RAINFORD, KERRY GORDON,BRYAN DUNCAN, ADRIAN ALEXANDER, GOLDEN PEAR FUNDING OPCO, LLC and JASON KRANTZ, Third-Party Defendants. ------- .-. -------------- .--------------- .- . -----... --- .------.. .X The following papers having been read onthis motion: Notice 9f Motion (Third-Party DefendantElefant) •............•..... ;.............. ;. ,.. 1 Opposition {Pefendants/Thir<i-Party Plaintiffs HVCA and. Kaufman) ... ,. •i.,. 2 Notice of Motion (Third-Party Defendants Golden Pear arid Krantz) .......... 3 Opposition (Defendants/Third-Party Plaintiffs HVCA and~ufman) ..•... ~·· 4 Page i of 6 [* 1] of .6 ......................1......oL ..6..... - - - - · - - - INDEX INDEX NO. NO. 611653/2018 611653/2018 FILED: NASSAU COUNTY CLERK 06/10/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 130 RECEIVED NYSCEF: NYSCEF: 05/26/2021 05/26/2021 Third-Party Defendant Elefant moves this Court for an order, pursuant to CPLR §32ll(a)(7), to dismiss the third-party complaint as asserted against him. Third-Party Defendants Golden Pear and Krantz have also cross-moved for the same relief. Defendants/Third-Party Plaintiffs HVCA and Kaufman have opposed both motions, artdneither movant has submitted reply papers, Based upmithe following, both motions are hereby granted . . . in full and the third-party complaint is hereby dismissed against Third,.Party Defendant Elefant and Third,.Party Defendants Golden Pear and Krantz forthwith .. The within action was commenced by Plaintiff on or about September 16, 2015, alleging a trip artd faU took place in the parking lot owned artd operated by Defondants/Third--Party Plaintiffs HVCA artd Kaufman on or about March 8, 2015. The matter was originally commenced in Supreme Court, Queens County, but was transferred to Supreme Court, Nassau County, following a motion decided on or about May 31, 2018. Afterdiscovery was completed in August 20 I 9, a note of issue was filed, followed soon after by a si.llnmary judgment motion by Defendants/Third-Party Plaintiffs HVCA and Kaufman. Tn a decision and order dated.July 9, 2020, Hon. Jack L. Libert, J.S.C., denied the summary judgment motion. On July 23, 2020, Defendants/Third-Party Plaintiffs HVCA and Kaufman filed a thirdparty summons and complaint, asserting causes of action, not sounding jn contribution •Or indemnification, but of fraud and civil RICO. None of the Third-Party Defendants named in the third-party complaint had been parties to the action from its inception; however, of note, forrt1er counsel. for Plaintiff, who had been relieved as counsel vja a c:ortsent to change of attorney. in October 2018, was named as a Thi.rd-Party Defendant. Additionally, none of the Third-Party Defendants ll.ave answered. the·· third-party complaint to date; instead, Third-Party Defendant. Elefant and Third"'.Party Defendants Oold~n Pear and.Krantz have.moved to.have. the third-party Pag~ 2 cif 6 [* 2] ......................................-.............................·-·---········ . ··-····............................,......_...... ,_ . . 2 2.._..of o£ ___ ..6 6__ .._.......... - - - - · · · . ······" .....- ................., ......................................----··-···-··-------- FILED: NASSAU COUNTY CLERK 06/10/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 130 INDEX INDEX NO. NO. 611653/2018 611653/2018 RECEIVED NYSCEF: NYSCEF: 05/26/2021 05/26/2021 complaint dismissed against them, respectively. It should also be noted that Defendants/ThirdParty Plaintiffs HVAC and Kaufman have filed a notice of discontinuance as to Third-Party Defendant Select Rehabilitation and have executed three stipulations of discontinuance as to Third-,Party Defendants Select Chiropractic, NY Surgery, and Alexander. Pursuant to CPLR §3211(a)(7), a party may move for judgment dismissingone or more causes of action asserted against him on the ground that the pleading fails to state a cause of action; When reviewing such a motion, the court must afford the pleading a liberal construction, accept the facts as alleged in the complaint as true; accord the plaintiff the benefit -of every favorable inference, and determine only whether the facts as aHeg€;:d fit within any cognizable legal theory. Reznick v. Bluegreen Resorts Mgmt.. Inc., 154 AD3d 891, 6,2 NYS3d 460 (2nd D€;:pt., 2017). Connolly v. Long Island Power Authority, 30 NY3d 719; 70 NYS3d 909 (2018). At the same time, the defendantbears the burden of establishing that the complaint fails to state a viable cause of action. Connolly v. Long Island Power Authority. 30 NY3d 719, 70 NYS3d 909 (2018); Thus, a motion to dismiss made pursuant to CPLR §321 l(a.)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law. Clarke v. Laidlaw Transit. Inc., 125 AD3d 920, 5 NYS3CI 138 (2 nd Dept,, 2015). Fraud requires a showing of material misrepresentation Ofan existing fact,. made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon misrepresentation~ and damages. Introna v. Huntington Learning. 78 AD3.cl 896, 911 NYS2d. 442 (2nd Dept, .2010). Allegations of fraud that are bare and concJusory or do not rise to level of fraud fail· to state .a proper· cause of action. Genovese v. State Farm; 106 Ab3 d 866. 965 NYS2d 577 (2nd Dept., 2013 ).. A fraud cause of action must be interposed WIthin the greater of six years Page 3 of .6 [* 3] 3 of .,_,__ 6 ______ - - - - - - ....... ···-··········-······----··-.3....o.£ FILED: NASSAU COUNTY CLERK 06/10/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 130 INDEX INDEX NO. NO. 611653/2018 611653/2018 RECEIVED NYSCEF: NYSCEF: 05/26/2021 05/26/2021 from the date the cause of action accrued and the complainant was damaged by the alleged misconduct or two years from the time the complainant discovered. or with reasonable diligence could have discovered, the fra:ud. House of Spices (India), Inc., v. SMJ Services, Inc., 103 AD3d 848, 960 NYS2d 443 '(2nd Dept., 2013). To state a cause ofactioh for damages based on a civil RICO violation, a plaintiff must plead the defendant's violation of 18 USC §1962, an injury to the plaintifrs business or property; and that the defendant's violationofthe statute caused the plaintiff's injury. Dempster v. Liotti, 86 AD3d 169, 924 NYS2d 484 (2nd Dept., 2011 ). The factual allegations used to support a civil RICO claim must be pled with the requisite particularity, .Grafstein v. Schwartz, 78 AD3d 772, 910 NYS2d 180 (2nd Dept., 2010). In the instant case, a liberal reading of the third-party complaint leads this Court to conclude that neither the fraud clahn nor the civil RICO claim have been pied with the necessru:y specificity to satisfy ·CPLR §3016. Defendants/Third~Party Plaintiffs HVCA and Kaufman premise their complaint upon·the testimony of Third-Party Defendant Kalkanis during& federal criminal action against Third--Party Defendants Duncan, Rainford, and an l1Illlamed non-party herein from May 2019, during which Third-Party Defendant Kalkanis testified to his participation in a.personal injury scheme; This testimony, while detailed as to the participants, the furtctioning. of the scheme, and. the time frame that this took place, this transcript is silent as to the parking lot owned and operated by Defendants/Third~Party •Plaintiffs HVCA and Kaufman and the subject accident involving Plaintiff Hutcherson... Furthermore, the third-party complaint itself does not. expound in -sufficient detail whatsoever any alleged scheme involving the named Third-Party Defendants and '.Plaintiff and is insufficient to support either a claim of common law fraud or civil RICO. Pa~e 4 of 6 [* 4] 4 of 6 INDEX INDEX NO. NO. 611653/2018 611653/2018 FILED: NASSAU COUNTY CLERK 06/10/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 130 RECEIVED NYSCEF: NYSCEF: 05/26/2021 05/26/2021 In addition to the foregoing, it cannot be overlooked the timing of the filing by Defendants/Th_irdc.Party Defendants HVCA and Kaufman, doing so within days of the denial of their·•Summary judgment motion. The Court can only speculate as to whether .or not this was done as a·delay tactic to a resolution on the merits of the underlying action, However, the fraud claim appears to be untimely, since it was filed more than two years after the alleged scheme . . was testified to in a federal criminal proceeding by Third-Party Defendant Kalkanis and Defendarttsffhitd-Party Plaintiffs HVCA and Kaufman could have learned of any aneged fraud with reasonable diligence·. See House of Spices at 849~ 446; Therefore; given the presentation before this Court, both motions to dismiss the thirdparty complaint are hereby granted in their entirety and the third-party complaint is hereby dismissed against Third-Party Defendants Elefant, Golden Pear, and Krantz, forthwith. Third-Party Defendant Elefantshall file and serve a copy of the within order with notice of entry upon all parties to the action within thirty (30) days from the date of this order. Th~reafter, subject to the discretion of the Justice there presiding, Plaintiff and Defendants HVCA and Kaufman shall appear in the.DCM Trial Part of Supreme Court, Nassau County; on October 5, 2021. Finally, in light of the stipulation of discontinuance as to Defendants Home. Goods and TJX, dated April 24, 2020, the notice of discontinuance as to Third~Party Defendant Select Rehabilitation, dated November 10, 2020, the stipulation of discontinuance as to Third-Pruty as t9 Defendant Select Chiropractic, dated October 30; . . . . . 2020,. the stipulation· of discontinuance . . Third~Pru:1y Defendant NY· Surgery, datecl January 6, 202 l, the stipulation of discontinuance as toThird.:Party Defendant Alexander, dated, February 11, 2021, and the foregoing, th~ heteby amended to read. as follows: ·•'STEPHON caption is fIUtCHERSON, Plaintiff, against HVCA, Page 5 of 6 [* 5] ...................................... _.,, ___ , ______ , _______5~~--------of 6 .. -.-~-~-:_;:, ____ ......... ···-····"" ---- INDEX INDEX NO. NO. 611653/2018 611653/2018 FILED: NASSAU COUNTY CLERK 06/10/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 130 RECEIVED NYSCEF: NYSCEF: 05/26/2021 05/26/2021 INC. and BASSER KAUFMAN, INC., Defendants. HVCA, INC. and BASSER KAUFMAN, INC, Third-Party Plain,tiffs, against PETER KALKANIS, DR. SADY RIBEIRO, ALL COUNTY, LLC, RYAN RAINFORD, KERRY GORDON, and BRYAN DUNCAN, Third-Party Defendants." This hereby· constitutes the decision and order of this Court. ENTER Dated:· May 25, 2021 Mineola, N. Y.11501 ~d~l &-}i)fun;," sIV HON. DAVID P. AN,J.S.C. ENTERED Jun 10 2021 NASSAU COUNTY COUNTY CLERK"S OFFICE Page.6 of 6 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __tl-D,,L_J:i,___ _ _ _ _ _ _ _ _ _ _ ... _,, .................,............ _ __ [* 6] 6 of 6

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