Chung v Xie

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Chung v Xie 2022 NY Slip Op 33486(U) October 7, 2022 Supreme Court, Kings County Docket Number: Index No. 503139/2020 Judge: Leon Ruchelsman 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. 503139/2020 FILED: KINGS COUNTY CLERK 10/13/2022 11:18 AM NYSCEF DOC. NO. 357 RECEIVED NYSCEF: 10/13/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CTVIL TERM: COMME~CIAL 8 . ------ . . . ---------- . ' . ----------------------. X YOUNGS. CHUNG, individua lly and dni behalf of URBAN FRESI::l CORP. ancl 11 UM FOOD CQ~P., Pla[intiff s, Decision and order Index No. 503139/202 '0 - against - COLIN K. XIE, BARBARA JANUS, JIJICEHROTHERS, LLC, AND DOES 1-100 October 7, 2022 Defe:ndant s, ----.--.--- .---.--.--·- .------·--- ------- .:-· .-- ·. . x. PRESENT: HON. LEON RUCHELSMAN The plaintiff has moved seekill.9 partial summary judgement pursuant t9 CPLR §3212. summary judgement . The defendant has cross-mov ed seeking The motions have been opposed respectiv ely. Papers we.l'.'e submitted by the parties and after reviewing all the arguments this court now rriakes the following determina tion. As recorded in prior ord,ers, :the plaintiff Young Chung and the defendant Colin Xie are equal owners of two grocery stores, one located in Queens County and the other in Kings County. Each party has accused the other of essenti,al ly stealing money from the corpOratio ns. Specifit:a lly, the plaintiff alleges the defendant used over one million dollars of business money to pay for personal debts from August 2018 through June 2019. The plaintiff now moves seeking summary judgement arguing there are no questions of fact the defendant misapprop riated corporate funds for personal use. The defendant has likewise moved s.eeking summary judgement on the cou.ntercla im that there are no questions of fact t:.he plaintiff likewise converted corporate funds for [* 1] 1 of 4 FILED: KINGS COUNTY CLERK 10/13/2022 11:18 AM NYSCEF DOC. NO. 357 INDEX NO. 503139/2020 RECEIVED NYSCEF: 10/13/2022 personal use. Concllisionsiof Law Where the material facts at 'issue in a case are in dispute summary judgment cannot be granted ! (Zuckerman v. City of New York, 49 NYS2d 557, 427 NYS2d 595 [1980]). the jury, the trier Qf Generally, it is for fact to ciete:rmine the legal ca:use of any issue, however, where only one conqlusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Mar'ino v. Jamison, 189 AD3d 1021, 136 NYS3d 324 [2d Dept., 2021). The plaintiff has presented :evidence that defendant Xie paid himself approximately $821, ooo: from corporate accounts and seeks a summary determination concluding the use of those funds was improper and must be returned. Mr. Xie argues that he had loaned the companies funds and the withdrawal of the amounts noted in this motion were merely the return of those loans. Thus, Xie argues there are signifiqaht questions of fact whether any rnisa'.ppropri.ation took place at all. Furthermore, Xie disputes the contention that the expenses noted in the motion were all personal and asserts m,3ny of them were in fact bU:Siness related expenses~ Thus, ±nan affidavit dated November 2, 2020 Mr. Xie provided. information that he loan~q. the companies significant sums of money. Mr. X:ier' s affidavit dated August .1 7, 2022 .2 : 2 of 4 [* 2] .... ······-············----------------------------------------------- INDEX NO. 503139/2020 FILED: KINGS COUNTY CLERK 10/13/2022 11:18 AM NYSCEF DOC. NO. 357 RECEIVED NYSCEF: 10/13/2022 13ubstantially - con.firms· bis earlier ~ssettions. Th.ere is .. n.o ! evidence supporting the argument thf two .affidavits contr.!3-dict each other and should therefore be ~gnored. they p:i::ovide con$·i$terit .evidence .r.epayrnents of loans he made. tn~ Ori the contt~ry, funds Xie too.k were .merely Wheth~r that explanation is true. or suff icet; to justify ta-king an-y fuI19:S is a matter thc1t mt~s·t be ! resolved as a tri-e-r of fact. Furth~r, whether the·· precise amounts allegedly loaned and.taken ~qual each other are matters ' that must b:e oeciq.ed t;,y a jury. T•hµs, t.h:ere :;is no basis to ~onclµc;i.e there are no questi.o.n.s of :fact whether Xie. stole corpor·a te funds. Likewise, the plal.rrtiff'' s md:tion $eeking summary j.udgerrte·n:t is simi.larly denie.d. While the court did state in an earlier d¢Cision the· :plaintiff ·opened ..an a.ccoun.t. withou.t the. defep.dant' s krtowl"edge the plaintiff a.sse.rts he: ;\ltilii:ed tha.t acqount to pay corporate expenses including· sala-r~es. Ther¢ .i.-s no indisputabl·e eviqence establishing. as a .matter of law .that ,;,ny party .c::ommitted any cor1version that a summary determinatiot i can be made thereto. : As notE:=d i.n prior orders e.ach p,;1rty· ·l'las ,;ic;:cused the: .othe.r of steaJ.ing funds. Ea.ch party insis1:s they did no such thing and :in fact only sought to infµse the·· corp.orations with fun,ds to. s.aivage·· t:.he·ir ?bility to·. continue ope.rations-. 14.o evidence has been P,resented that conc1usive.1y resolves any of these issues. 3 [* 3] 3 of 4 ----------- ----------- --,__;. ·······-···-·· ···-·--··-·-- -·---------- FILED: KINGS COUNTY CLERK 10/13/2022 11:18 AM NYSCEF DOC. NO. 357 INDEX NO. 503139/2020 RECEIVED NYSCEF: 10/13/2022 Con,:;equently, all motions see~ing summary judgertterit are denied. ENTER: DATED: October 7, 2022 Brooklyn N.Y. 4 [* 4] ............ -................. - ... -....·-·······--·····.......... _________________________________ 4 of 4

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