Kang v Kang

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Kang v Kang 2022 NY Slip Op 31767(U) June 3, 2022 Supreme Court, New York County Docket Number: Index No. 159533/2020 Judge: Debra A. James 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. 159533/2020 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 06/03/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA JAMES 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. DAMIEN KANG, on behalf of himself and as a shareholder owning greater than 20% of the issued and outstanding stock of KANG CORRECTIVE CHIRORACTIC, P.C., 159533/2020 MOTION DATE MOTION SEQ. NO. 04/04/2022 003 Petitioner, - V - DECISION + ORDER ON MOTION CHRISTIAN KANG and KANG CORRECTIVE CHIROPRACTIC, P.C., Respondents. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 39, 40, 41, 42, 43, 44,45,46,47,48,49,50,51,52,53,54,55,56,57,58,59, 60 were read on this motion to/for DISMISS ORDER Upon the foregoing documents, it is ORDERED that, to the extent that it seeks to dismiss the petition on the grounds of abandonment, the motion of respondents is denied; and it is further ORDERED that, within fifteen (15) days of service of a copy of this Order with notice of entry, petitioner shall post on NYSCEF a notice of appearance; and it is further ORDERED that should petitioner need assistance with filing such notice of appearance, he shall contact the New York County Supreme Court Help Center for Unrepresented Persons, Street, Room 116 60 Centre (646-386-3120 or SFC-HelpCenterNY@nycourts.gov for help with electronic filing only); and it is further 159533/2020 KANG, DAMIEN vs. KANG, CHRISTIAN Motion No. 003 [* 1] Page 1 of 5 1 of 5 INDEX NO. 159533/2020 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 06/03/2022 ORDERED that, counterclaims, to the extent the motion of that it respondents seeks is to denied; sever the and it is further ORDERED that, to the extent that it seeks a counterclaims, the motion of proceeding set down for is respondents a trial is on trial of the granted the and the petition and counterclaims; and it is further ORDERED that a copy of this order with notice of entry be served by the movants upon the petitioner by regular first class mail at his last known address and upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who is directed, upon the filing of a note of issue and a certificate of readiness and the payment of proper fees, if any, to place this proceeding on the appropriate trial calendar for the trial of the claims and counterclaims hereinabove directed; and it is further ORDERED that such service upon the Clerk of the General Clerk's Office 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) DECISION The court recognizes that petitioner did not post his opposition papers and request for an adjournment until March 4, 2022, the return date of the motion to dismiss. 159533/2020 KANG, DAMIEN vs. KANG, CHRISTIAN Motion No. 003 [* 2] As such papers Page 2 of 5 2 of 5 INDEX NO. 159533/2020 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 06/03/2022 were wholly untimely, the court does not consider same. However, given that in his reply papers, counsel for respondents acknowledges and appends petitioner's responsive papers that he represents that such counsel received by e-mail from petitioner, in time for respondents to post a reply, the court considers such opposition papers in opposition to respondents' motion to dismiss the petition. Respondents are correct that petitioner has not complied with the directive of the Order entered on November 15, 2021, which directed petitioner to "notify the Clerk of the Part of [his] decision [to represent himself] in writing, within 30 days" after the mailing by his former attorney, "of a copy of this order with notice of entry" (NYSCEF Document 36). However, the court finds that petitioner constructively appeared when he posted papers in opposition, though wholly untimely, to the herein motion to dismiss of the respondents. Finding no prejudice to respondents with respect to the absence of a formal notice of appearance, the court shall now direct petitioner to formally post such notice of appearance on NYSCEF. On September 2, 2021, former counsel for petitioner served, upon respondents and the Office of the General Clerk, the Order entered on August 6, 2021 (NYSCEF Document Number 28), which 159533/2020 KANG, DAMIEN vs. KANG, CHRISTIAN Motion No. 003 [* 3] Page 3 of 5 3 of 5 INDEX NO. 159533/2020 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 06/03/2022 Order set the case down for trial. 1 Respondents point out that petitioner never complied with the directive in that same Order to file a note of issue and certificate of readiness. However, dismissal of a proceeding pursuant to CPLR 3404 is limited to proceedings where a note of issue and certificate of readiness have been filed, and this court finds no reason that respondents could not have made such filings in connection with the trial of their counterclaims. In any event, as filings of a note of issue and certificate of readiness have yet to be made in this case, dismissal of the petition on the ground of abandonment is unavailable. See Wilmington Trust, National Association v Mausler, 192 AD3d 1212 (3d Dept 2021). Nor are respondents entitled to dismissal of the petition on the grounds of lack of petitioner's prosecution pursuant to CPLR 3216, as respondents have not met the strictures of that statute. Wilmington Trust, ibid, p 1213. Finally, the fourth counterclaim for declaratory judgment interposed in the answer of respondents raises some of the same issues, adjudication of stock ownership, for example, that are 1 A review of the NYSCEF docket shows that less than two weeks after the service of the Order entered on August 6, 2021, counsel for petitioner moved by show cause order to be relieved. The Order granting such relieved, stayed the proceeding for 40 days from service of such Order with notice of entry. As stated by respondents' counsel, such stay expired on December 10, 2021. 159533/2020 KANG, DAMIEN vs. KANG, CHRISTIAN Motion No. 003 [* 4] Page 4 of 5 4 of 5 INDEX NO. 159533/2020 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 06/03/2022 implicated in the petition for corporate dissolution. To that extent, there is no prejudice to respondents, who seek a trial before this court with respect such declaration. See In re Three Hours Plants and Flowers, Ltd., 135 AD2d 396 (1 st Dept 1987) . P- ~ ,d - } ~ 20220603171711DJAM ES704EDB0626AB4F91A6C2C4EE3325EF0B 6/3/2022 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: DEBRA JAMES, J.S.C. ~ CASE DISPOSED GRANTED • DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN 159533/2020 KANG, DAMIEN vs. KANG, CHRISTIAN Motion No. 003 [* 5] ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT • • OTHER REFERENCE Page 5 of 5 5 of 5

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