FILED: NEW YORK COUNTY CLERK 11/21/ :08 PM INDEX NO /2013 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 11/30/2017

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ABRAM SABO INDEX NO.: / 2013 v. Plaintiff, ALBERT CANDERO, HEATH CANDERO, NOTICE OF MOTION MAXINE CANDERO, KING SPRING TAXI INC., AND H&M CAB CORP, BONEHEAD LLC., NIGHT OWL MOTION FOR RELIEF NYC LLC, HEATH MANAGEMENT CORP., GOLD TAXI TO AMEND AND JOIN BROKERS, INC. A NECESSARY PARTY AND RETURN DATE: 12/17/2017 ROOM: 130 CAPITAL ONE EQUIPMENT FINANCE CORP TIME: 9:30 A.M. INDIVIDUALLY AND CAPITAL ONE MEDALLION ADDRESS: 60 CENTRE FINANCE, A TRADE NAME OF CAPITAL ONE STREET, NY NY EQUIPMENT FINANCE CORP Defendants. / TO ALL PARTIES AND THE HONORABLE COURT NOTICE IS HEREBY GIVEN THAT ON THE RETURN DATE OF DECEMBER 17 TH, 2017, IN ROOM 130 AT 9:30 AM OR AS SOON AS THE MATTER MAY BE HEARD, AT THE COURTHOUSE LOCATED AT 60 CENTRE STREET, NEW YORK, NY, 1007, THE PLAINTIFF WILL SEEK THE FOLLOWING RELIEF: MOTION The Plaintiff, Abram Sabo, has discovered an additional necessary party to the action, CAPITAL ONE EQUIPMENT FINANCE CORP INDIVIDUALLY AND CAPITAL ONE MEDALLION FINANCE A TRADE NAME OF CAPITAL ONE EQUIPMENT FINANCE CORP. and respectfully requests that the Plaintiff be granted leave to amend the complaint to join a necessary party and file the attached amended complaint. 1 of 7

2 BACKGROUND The Plaintiff brought the above-entitled action for fraudulent transfer of two assets, the home located in Palm Beach County Florida and the medallions. After the complaint was filed, the judgment debtor, ALBERT CANDERO, filed a bankruptcy action that was removed to the Southern District of Florida. The Trustee then took over the fraudulent transfer claims in an effort to recover assets for the estate, and entered into a settlement agreement with the above named defendants ALBERT CANDERO, HEATH CANDERO, MAXINE CANDERO, KING SPRING TAXI INC., H&M CAB CORP, BONEHEAD LLC., NIGHT OWL NYC LLC, HEATH MANAGEMENT CORP., GOLD TAXI BROKERS, INC. The Trustee accepted the settlement based on the fact that CAPITAL ONE EQUIPMENT FINANCE CORP INDIVIDUALLY AND CAPITAL ONE MEDALLION FINANCE A TRADE NAME OF CAPITAL ONE EQUIPMENT FINANCE CORP. (hereinafter Capital One) had placed a series of UCC liens on the medallions, so encumbering them that it was not worth pursuing them further. That in or about January of 2017 the Plaintiff learned that it was Capital One who had entered into a JOINT AGREEMENT with the Defendants to derive income from the medallions and as a result, made Capital One not only a co-conspirator in the fraudulent transfer of assets, but they violated the restraining order issued by this judge and they are financially profiting from the same in the form of profiting from the interest on their purported loan and income from the revenue from the use of the medallions by the shell companies formed by the Judgment debtor and his son. As a result, the 2 of 7

3 Plaintiff recently sought and obtained an order granting him relief from the automatic stay so he could pursue his claims against Capital One for their conspiracy in fraudulently transferring and concealing the assets which could and should have been used to satisfy the judgment. RELIEF SOUGHT The Plaintiff, Abram Sabo, has discovered an additional necessary party to the action, CAPITAL ONE EQUIPMENT FINANCE CORP INDIVIDUALLY AND CAPITAL ONE MEDALLION FINANCE A TRADE NAME OF CAPITAL ONE EQUIPMENT FINANCE CORP. and respectfully requests that the Plaintiff be granted leave to amend the complaint to join a necessary party and file the attached amended complaint. ARGUMENT IN SUPPORT OF RELIEF POINT ONE LEAVE TO AMEND SHOULD BE FREELY GRANTED TO JOIN A NECESSARY PARTY AND NO ONE WILL BE PREJUDICED BY THE JOINDER. Because of the bankruptcy of the judgment debtor, this case has been stalemated by the automatic stay imposed by the Bankruptcy Court in the Southern District of Florida. Now, the Court has granted limited relief from that stay giving the Plaintiff permission to proceed against Capital One for their involvement in the fraudulent transfer. They are and were not a party to the settlement of $200,000; and the Plaintiff is further informed, believes, and 3 of 7

4 thereon alleges that even the $200,000 settlement amount has not been paid by the remaining defendants even though the time for payment has lapsed. CPLR 3025(b) contains no limitation on the scope of an amendment of a pleading with court leave."-. Cases under the CPA were generally liberal in the types of amendments permitted, even to the extent of allowing the addition or substitution of an entirely new cause of action, new parties, changes in the legal theory of the action, or even adding new defenses or counterclaims. See Renwick v. Town of Allegany, 18 App. Div. 2d 877, 236 N.Y.S2d 902 (4th Dep't 1963); 1936 N.Y. LEG. Doc. No. 48, 2 N.Y. Jud. Council REP. 15; Prashker & Trapani, New York Practice (4th ed. 1959). See generally Peterfreund & McLaughlin, New York Practice 754 n.3 (1964). Civil Practice Law and Rules [CPLR] Section 3025 authorizes the amendment of a pleading in an action, including the Complaint of the plaintiff. According to subsection (b) of CPLR 3025, leave of court is needed to amend a pleading once issue has joined; however, it should be freely given to a party. New York courts have held that, in the absence of prejudice to the defendant, the amendment of a pleading should be freely granted by a court. See, Kushner v. Queens Transit, 97 AD2d 432 (2d Dept. 1983); Sotomayor v. Princeton Ski Outlet Corp., 199 AD2d 197 (1st Dept. 1993). It is also well established law that a motion to amend a pleading should be freely given absent a showing by an opposing party of surprise or prejudice. Zacher v. Oakdale Islandia Ltd. Partnership, 211 AD2d 712 (2d Dept. 1995); Santori v. Met Life, 11 AD3d 597 (2d Dept. 2004). 4 of 7

5 There is no prejudice to the other Defendants because they are currently under protection of the bankruptcy court s automatic stay and relief from the stay extends to the Plaintiff having the right to sue Capital One. In a recent case litigated by Richard A. Klass, Your Court Street Lawyer, it was urged that, since the action had not been pending for a significant period of time, and was not on the eve of trial, no prejudice could be shown by defendants to the amendment of the Complaint. See, e.g., Kopel v. Chiulli, 175 AD2d 102 (2d Dept. 1991). Case law has held that delay in seeking to amend the Complaint does not bar such relief. Haven Associates v. Douro Realty Corp., 96 AD2d 526 (2d Dept. 1983). Finally, Plaintiff provided the trial court with a copy of the proposed Amended Complaint to be served upon the defendants. See, Anderson Properties Inc. v. Sawhill Tubular Division Cyclops Corp., 149 AD2d 949 (4th Dept. 1989). Here, the Plaintiff has attached a complaint for causes of action against Capital One which is in addition to and supplements the complaint which is currently on file with the Court. PRAYER FOR RELIEF The Plaintiff respectfully prays that he be permitted to file this attached complaint against the newly discovered NECESSARY party Capital One on the grounds that the harm occurred when the Trustee settled with the remaining Defendants for less than the demand of the original complaint because of the interference by a co-conspirator and cloud on the assets that could have been 5 of 7

6 used to satisfy the judgment and the Clerk be ordered to amend the caption of the complaint to include the newly added parties. Respectfully submitted, /s/ Abram Sabo Abram Sabo Mystic Pointe Dr, Suite 2003, Aventura, FL Tel: of 7

7 CERTIFICATE OF SERVICE A true and correct copy of the foregoing was served on 11/30/2017: DOAR RIECK DEVITA KALEY AND MACK ASTOR BUILDING 7 TH FLOOR 217 BROADWAY, NY NY firm@doarlaw.com /s/ Abram Sabo Abram Sabo 7 of 7