Craniofacial Surgery, P.C. v Hyman

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Craniofacial Surgery, P.C. v Hyman 2023 NY Slip Op 31650(U) May 11, 2023 Supreme Court, Kings County Docket Number: Index No. 511542/2018 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. 511542/2018 FILED: KINGS COUNTY CLERK 05/16/2023 11:54 AM NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 05/16/2023 SUPREME- COURT OF THE STATE OF NEW'. YORK GQUNTY OF KINGS : CIVIL TERM: COMMERCIAL.PART 8 -.-----:--------- ~-. ·-·---. ----·-. ·- .---------.--- .-x CRANIOFACIAL SURGEl{Y, P •.. C., BR.OOK;LY.N MEDICAL EYE ASSOCIATES LLC, Decision and order Plai"ntiffs, Index No~ 511542/2018 - against G"EORGE F. HYMAN M. D., GEORGE F. HYMAN M.D. PL:LC, May 11, 2023 Def:endant_.$, ----- ·-. ----- :.- ·-. -· . --------·--·-- -------· ·-· _x_ PRESENTi HON. LEON RUCHELSMAN T_he plaintiffs have moyecl. pursuant to Motion Seq. #5 & #6 CPLR §32·12 seeking summary juctg·em.ent and to oism.iss the c;lefendan,t' s co1,mterclairn s. The defendants hav.e cross-moved seeking summary judgement .dismissing the lawsuit -and for judg.(=rnent on the countercl•airn . 'rhe motions have been opposed respectively . submitted by· all parties and -arguments held. Papers were After revi_.ewin9 all t:he a-rg.uments this court now make·s the follow.i:t;lg o.etermin-c;tio n. As rec_orded in prior orders, on December 28, 2012 the =piaint.iff Cr.aniof-.acial -Surgery PC ·entered intci. a contract_ with defenc::lant George Hyman to purchase Brooklyn Eye Medical ·Associates tLC for $650", 000. amount of -$2.00, 000. The- -:t,lainti-ff pa·id an -initi.a1 Pursµa;nt to t_he ag-reement and accompanying_ promissory ndte the plaintiff was. required to pay half the ou..t_stand_irig amount py December 31, 2013 and the December 31, 2014, other ha,lf by The remainin.g balance was never 9aid and the de-fendant obtained a judgement against th~- plaintiff _;in Nassau County .in the aJnount -0£ $450,000 (see_, Hyman V. Golia, i34 AD3d 992, 2 4 NYS3d. _84 [* 1] [2d bept.., 20_15] and. Hyman v, Golio, 195 Ao,·3.ct 1 of 5 INDEX NO. 511542/2018 FILED: KINGS COUNTY CLERK 05/16/2023 11:54 AM NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 05/16/2023 69B, 150 AD3d 282 [2d Dept., 2021]) , During May 2015 the defendant be.gali. working in a medical facility nearby. The complaint alleges the defendant violated a hon-compete contained within the purchase agreement and the plaintiff seeks summary The plaintiff further set~ks judgement on that cause of action. summary judgement asserting the plaintiff is entitled to a return of the $200,000 already paid and for attorney's fees and indemnification and also to indemnify the plaintiff for expenses The de.fertdants oppose the in the Nassau County litigation. motion and have cross.,..moved seeking essentially to dismiss the lawsuit. Conclusions of Law Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v. City ..of Ne.wYork, 49 NYS2d 557, 427 NYS2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause of any injury, however, where only one conclusion may be drawn from the facts then the question o.f legal ca:use. may be decided by the trial court as a matter of law (Marino v. Jamison, 189 AD3d 1021, 136 NYS3d 324 [2d bept.i 2011). Relevant to this motion, Article 10.2 of the purchase agreement states that "the seller shall, defend, indemnify, save and keep harmless, the Buyer. .. from all damages sustained or incurred ... by virtue of ... any inaccuracy in or breach of any 2 [* 2] 2 of 5 INDEX NO. 511542/2018 FILED: KINGS COUNTY CLERK 05/16/2023 11:54 AM NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 05/16/2023 representation and warranty made by Seller i_n this agreement. .. " (see, LLG Purchase Agreertrent, ll0.2 [NYSCEF Doc. No. 6]). The plaintiffs .assert the defendants made false representations concerning the fact the entity was in compliance with all state and Federal laws and was compliant with all billing practices. However, the plaintiffs have not introduced any evidence eliminating any questions of fact whether the defendants made any such misrepresentations . The. plaintiffs cite to the defendant's testimony in a Federal action, however, those depositions do not conclusively establish the defendant made inaccuracies in the purchase agreement. Moreover~ ihderrihification; according to the express terms of the clause only applies to damages sustained or It does not apply to incurred as a result of any inaccuracies. The initial payment of $200,000 the purchase price in any event. was not a damage sustained or incurred as inaccuracy. a result of any Moreover, it has already been established that the plaintiffs here maintain no ability to pursue any claims for any sort of indemnification since the right to present such claims has been foreclosed. Notably, in the prior Appellate Division decision the court held that "by the plain language of the guaranty, the defendant [plaintiff here] was precluded from raising any defenses o.r couhterclaitns relating to the underlying debt" (see, 2015]). Hyman V. Golio, 134 ADJd 992, 24 NYS3d 84 [2d Dept., Thus, the plaintiff cannot ass.ert claims regarding indemnification, which are really claims the defenclants committed 3 [* 3] 3 of 5 INDEX NO. 511542/2018 FILED: KINGS COUNTY CLERK 05/16/2023 11:54 AM NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 05/16/2023 'tl)ere_fqre, th-.is some w··rong -since-. such claims a,re pr_eclud_ed. porti.9n of the motion seeking summary judgement is denied. Likew.i,se, the· motion see)cing summary· judgement the defenda_nts. 'must indemnify the pla.i"ntiff s for :eo.sts with the Nassau County .action is denied_. .a:ssociated It is well settled ttiat indemnLficat ion allows a party forced to ·pay ·for the wrong.doin9 of another: to n~cover s-µ~h payment. from the actual wrongdoer (McDEftrnott v. City of New Yor"k, 11980].) ·. s·o NY2d 211, 4··:;tff NYS2d 6:43: ln. ·thi~: case ·the defendants did not commit any wrongdoing, on the contrary, the defenqants prevailed in that lawsuit. The pL.'li;n.tiff cqhnot seek indemnificati on: for -a· lawsuit they lost on th~ g.roonds the defendants acted ~n sqme improper manner. The vindication on defendant's behalf of that law.suit ·foreclpses any incl.ernnificat ion. Turning to the motioh seeking summary judgement for lost profits on -:the gro"i,.mds- the deferid;ant violated: the nort:-compete provision of the a.greement, that motion .is denied, .It is well settled that a party that breaches an agre.ernent 6-anhot thereafter assert any claim:s of ·breach -.of a rE;!str;L_._ctive· covenant ( see, Random Ventures Inc. , v. Advanced Armament corp.. , LLC, 2014 W'L 1137"45 [S. D. N,, Y. 2014]) . T_h.ere :really can be no qµestion of fact the plaintiff breached the agreernen:t by failing to tender the payments due.• As. noted; that determination has been confirmed- ·by the Appellate- Division. The:re have. been issues raised est~blishihg que~tions of fa¢t wheiher the 4 [* 4] 4 of 5 :no. INDEX NO. 511542/2018 FILED: KINGS COUNTY CLERK 05/16/2023 11:54 AM NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 05/16/2023 plaintiff breached the agreement thereby foreclosin g the right to pursue claims the defendant violated the non:..,.compe te clause. It has been Conclusiv ely establishe d the plaintiff first breached the agreement relieving the strictures of the non-compe te provision . consequen tly, that portion of the motion seeking summary' iS denied. Indeed, a11 of the plaintiff 's requests seeking summary judgement are hereby qenied. Turning to the defendant 's cross"""mot ion seeking to dismiss all claims, as noted, the claims of the plaintiff cannot be sustained . The cross-mot ion seeking to dismiss all the cause-s of action is granted. The motion seeking suminary judgement on the Countercla im is granted. So ordered. ENTER: DATED: May 11, 2023 Brooklyn N.Y. Hort. Leon Ruchelsma n JSC 5 [* 5] 5 of 5

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