Supreme: Court of State York NEW York County Present
Supreme: Court of State York NEW York County Present
PRESENT: ,
ir'
Justice
YORK - NEW YORK
PART
COUNTY
TK
INDEX NO.
MOTION DATE
- Y -
MOTION SEQ. NO. d&$/
MOTION CAL. NO.
PAPERS NUMBERED
/-
Check one: I-! FINAL DISPOSITION DISPOSITION
~NON-FINAL
Check if anDrooriate: a DO NOT POST REFERENCE
- . - . -. .. ... .- .. .
SUPREME COURT O F THE STATE OF NEW YORK
COUNTY O F NEW YORK: IAS PART 36
X
EMILIO BARLETTA,
Plaintiff,
-against- Index N o .
115329/07
4 5 3 WEST 17TH REST. CORP., JOHN YONKUS,
RICHIE AKIVA, SCOTT SARTIANO, RONALD .: 001,
KAPLAN, EYTAN SUGARMAN, Motion O W & 005
was the owner of a club operated at 453 West 17th Street, New
1
.t;
telephone number, for the sum of $800,000. Plaintiff paid
this sale, but state that it was subject to the approval of the
Proxy) in which JIJ, also subject to the approval of the New York
State Liquor Authority, gained the voting sights f o r 50% of
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trans a c t ions.
Seller refused. Plaintiff now brings this act. 3n or: (i) breach
by Yonkus and the Group, who used the stock transfer as a reason
not to close under the Agreement, and obtained the lease of the
Premises for the Group (second and third causes of action); (111)
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(ii) Barletta cross-moves, pursuant to CPLR 3126, to strike
compel discovery.
Defendants argue that: (i) counsel for Barletta was the same
never waived; (ii) the Agreement was not binding because Yonkus
Sartiano.
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Punitive damages have the dual purpose of punishing the offending
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plaintiff has not satisfied conditions precedent for the sale of
and/or the Group) had not approved the sale, rendering the
Agreement unenforceable.
C o n f l i c t of Interest
Defendants offer no support for their implied contention
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Agreement are missing, rendering it unenforceable. Specifically,
defendants assert that the Agreement fails to: (i) identify the
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assets, and the calculation of a monthly payment (for which the
essential terms.
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..
I----:
Shareholder Approval
the Seller and created the irrevocable Proxy for his remaining
This argument fails for two reasons. First, upon their own
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would have no presumptive power to authorize any sale of assets.
Indeed, as the Proxy was a l s o not approved by the NYSLA, the
the entity JIJ was a party to this sale. Nevertheless, any such
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the submissions.
alleged by plaintiff.
perform under it; if they were not, then they were third parties
forth below.
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Preliminary I n j u n c t i o n (Motion Sequence Number 0 0 1 )
Dept 2004).
Yonkus before and after the Agreement. Not only were those
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transactions admittedly subject t o the approval of the NYSLA,
proven.
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his favor, since the record affords no reason to believe that he
invested any more than his initial down payment. Any injury to
( l SDept
t 2001); j3lein. Wawe r & Morris v Lawrence A , K l e i n ,
PI C
‘ 186 AD2d 631, 633 ( 2 n d Dept 1992).
Protective Order
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( 3 r d Dept 1998).
Merrid v Niaqara Mohawk Power Corn. , 144 AD2d 878, 879 ( 3 r d Dept
1988) (same); see a l s o Y I l L I s v CassJ' 4 , 255 AD2d at 800.
Moreover, Barletta asserts, and defendants do not contest,
CPLR 3103. & CPLR 3103 ( a motion for a protective order stays
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filed or sent to the New York State Liquor Authority concerning
”It is beyond cavil that ’hew Y o r k has long favored open and
358; Twentv F o u r Hour Fuel Oil Corp. v Hunter Ambu lance Inc., 226
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AD2d 175 (13t Dept 1996); m a n Catholic Church o f The Good
order is denied.
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only where "non-disclosure was willful, contumacious, or due to
bad faith"); Henrv Rosenfeld v Bower and Gardner , 161 AD2d 374,
3 7 4 (1" Dept 1990) (striking answer is an "extreme and drastic
or contumacious '
I ) .
Here, while the Discovery Order has not been carried out,
Notion tn Compel P L g c o v e r y
agree to go with the disclosure, and that only those items upon
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deem just. See e.q. Alveranaa -Duran v New White hall A p t $ . ,
u,
4 0 AD3d 287 ( l S tDept 2 0 0 7 ) .
3126.
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Bruce S u p p l v Corp., 8 AD3d 248 (2nd Dept 2004); C O ~ B T ~ZTl e~t z V
Accordingly, it is hereby
are granted to the extent that the fifth cause of action for an
and it is further
only to the extent that they seek punitive damages, and the
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ORDERED that the cross motion of plaintiff (sequence number
1t
005) f o r an order to compel discovery is granted, and defendants
plaintiff shall serve a copy of this order upon all parties with
notice o f entry.
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