Moslem v. Demartino

Unpublished Opinion

Motion Date: October 27, 2021

HONORABLE CHEREÉ A. BUGGS JUSTICE.

The following e-file papers numbered 169-195, 197-199, 201 submitted and considered on this motion by defendants Drew Smith (hereinafter "Smith") seeking an Order pursuant to Civil Practice Law and Rules ("CPLR") 3126 striking plaintiffs' Mehdi Moslem a/k/a Michael Moslem and Accel Motors, Inc. (hereinafter referred to as "Moslem", "Accel" or collectively as "Plaintiffs") pleadings and for related relief; and the cross-motion of Plaintiffs seeking denial of the motion or in the alternative, pursuant to CPLR 2201, granting Plaintiffs' cross-motion for a stay pending resolution of Moslem's criminal proceeding.

Papers Numbered
Notice of Motion-Affidavits-Exhibits ..................	EF 169-189, 190-191
Cross-Motion-Affidavits-Exhibits .......................	EF 192-195
Affirmation in Opposition-Affidavits ...................	EF 197-198
Reply-Affidavits-Exhibits .....................................	EF 199, 201

Relevant Procedural History

This is an action for fraud, breach of fiduciary duty and for declaratory judgment related to properties located at 30-15 Thompson Avenue, Long Island City, New York, also known as 30-24 Skillman Avenue, Long Island City, New York and 1114 Fulton Street, Brooklyn, New York 11238. Moslem and Accel filed a summons and verified complaint on May 16, 2016. Co-defendant Dante

DeMartino (hereinafter "DeMartino") filed a verified answer with counterclaims on June 7, 2016 and Smith filed a verified answer with counterclaims on July 14, 2016.

On or about November 17, 2016 Plaintiffs filed an Order to Show Cause seeking an Order canceling a Notice of Pendency filed by Smith against real property known as 30-15 Thompson Avenue, Long Island City, New York, also known as 30-24 Skillman Avenue, Long Island City, New York, Block 0275, Lot 35. Smith and DeMartino cross-moved, for an Order which would enjoin Plaintiffs from (1) withdrawing, pledging, conveying, dissipating, removing, paying, assigning, borrowing, loaning, pledging, hypothecating, or otherwise transferring or using without the consent of the other parties in writing, or by order of the court, any real or personal property owned or controlled by Accel other than in the ordinary course of business; (2) transferring, encumbering, assigning, removing, pledging, mortgaging or otherwise impairing (i) Accel's fee interest in the land and improvements thereon known as 30-15 Thompson Avenue, Long Island City, New York 11101, Tax Block 275, Tax Lot 35, or (ii) any fee interest owned or controlled by either of the Plaintiffs in the land and improvements thereon known as 1114 Fulton Street, Brooklyn, New York 11238, Tax Block 2016, Tax Lot 35; and, from altering, concealing, relocating, destroying or otherwise impairing any books and records of Accel or any company having an interest in the Fulton Street property. By Order of the undersigned dated April 3, 2017, Plaintiffs' motion to vacate the Notice of Pendency against the Thompson Avenue property was granted but denied as to the Fulton Street property, Smith and DeMartino's cross-motion for injunctive relief was granted. On or about May 5, 2017, Plaintiffs moved pursuant to CPLR 2221 for leave to renew and reargue the Court's April 3, 2017 decision. By Order of the undersigned dated September 14, 2017, Plaintiffs' motion was granted to the extent that the Defendants were directed to post an undertaking in the amount of $450, 000.00 within fifteen days of the date of the Order.

Smith renews his application seeking an Order pursuant to CPLR 3126 striking Plaintiffs' pleadings; dismissing Plaintiff's claims in the action; prohibiting Plaintiffs from supporting or opposing his claims in this action and resolving all issues in the action in favor of the Defendants. DeMartino joins this application. By Order of the undersigned dated February 7, 2020 Smith's prior motion was denied based upon Smith's failure to submit a good faith affidavit evidencing a good faith effort to resolve any discovery dispute. DeMartino joins the application. Smith alleged that throughout the pendency of this litigation, Plaintiffs have...