FILED: NEW YORK COUNTY CLERK 11/28/ :06 PM INDEX NO /2016 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/28/2016

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1 FILED NEW YORK COUNTY CLERK 11/28/ PM INDEX NO /2016 NYSCEF DOC. NO. 60 RECEIVED NYSCEF 11/28/2016 ELLENBERG & PARTNERS, LLP Frederick R. Dettmer, Esq. Of Counsel 494 Eighth Avenue, 7 th Floor New York, New York Attorneys for Defendants SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x ADAM BAUMAN and BLUE SEABREEZE LLC Plaintiffs -against- INDEX NO /2016 TAKAYOSHI OSHIMA, ALLIED TELESIS INC., ALLIED TELESIS HOLDINGS K.K., NIK PAREKH, YOSHIO GOHARA, BARNARD BAUTISTA and ASHIT PADWAL Defendants x STATE OF NEW YORK ) ss COUNTY OF WESTCHESTER ) AFFIRMATION OF FREDERICK R. DETTMER IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT FREDERICK R. DETTMER, an attorney admitted to practice before the Bar of the State of New York and before this Court affirms that the following is true under penalty of perjury 1. I am admitted to practice before this Court and am one of the attorneys for Defendants Takayoshi Oshima, Allied Telesis Inc., Allied Telesis Holdings K.K., Nik Parekh, Yoshio Gohara, Barnard Bautista and Ashit Padwal in the above-captioned case. I submit this affirmation in opposition to plaintiffs motion for summary judgment. Plaintiffs motion 1 of 5

2 should be denied because (1) it is being brought on behalf of a corporate party by an individual who is not an attorney, (2) it fails to comply with this Court s requirements for making summary judgment motions, (3) there is already pending before the Court defendants earlier-filed motion to dismiss which, if granted, would obviate any need to consider plaintiffs instant motion, and (4) it is premature. 2. Defendants have filed a motion to dismiss the complaint on the grounds, inter alia, that the Court lacks jurisdiction over each defendant and that service of process was defective and ineffective as to defendants Allied Telesis Holdings K.K. ( Holdings ) and Yoshio Gohara. Defendants do not waive those defenses by responding to plaintiffs motion for summary judgment. CPLR R. 3211(e); Hopstein v Cohen, 2016 N.Y. App. Div. LEXIS 6704, 2016 NY Slip Op 06803, AD3d, NYS3d (2d Dept. Oct. 19, 2016); Frederic v Israel, 104 AD3d 909, 910, 960 NYS2d 918 (2d Dept. 2013). Procedural Background 3. On September 13, 2016, Adam Bauman purported to file a summons and complaint on behalf of himself and a corporation, Blue Seabreeze LLC ( Seabreeze ). The Complaint alleges breach of a contract between plaintiff Seabreeze and defendant Holdings. (A copy of the subject contract is annexed to the Affidavit of Adam Bauman, sworn to on November 8, 2016 (the Bauman Aff. ), as Exhibit A.) Neither plaintiff Adam Bauman nor any of the defendants other than Holdings are parties to the contract. Moreover, Mr. Bauman is not an attorney and accordingly cannot represent Seabreeze in this action. See CPLR 321(a) of 5

3 4. On October 21, 2016, Adam Bauman prematurely purported to file a motion for default judgment. (Motion No. 1) Despite being advised that the motion was premature because defendants deadline for answering and/or moving to dismiss did not expire until November 3, 2016 (and moot in light of defendants timely filing of answers and a motion to dismiss), Mr. Bauman declined to withdraw the motion. 5. On November 3, 2016, all defendants timely filed a motion to dismiss pursuant to CPLR R 3211, and answers with affirmative defenses. That motion is fully briefed and was submitted on November 22, Defendants motion is based on the grounds, inter alia, that this court lacks personal jurisdiction over each defendant (CPLR 3211(a)(8)); that only Holdings is a party to the subject contract, so all the other defendants are not proper parties to the litigation (CPLR 3211(a)(1)); that plaintiff Adam Bauman is not a proper party to the litigation because he is not a party to the contract (CPLR 3211(a)(1)); and that Seabreeze may not appear without counsel (CPLR 3211(a)(3)). (Motion No. 2) 7. At the return date of defendants motion, November 22, 2016, Adam Bauman represented to the Referee that he had just retained counsel. However, as of the submission of this affirmation, no Notice of Appearance has been filed by any attorney for plaintiffs. 8. On November 8, 2016, during the pendency of plaintiffs motion for a default judgment and after defendant had filed their motion to dismiss, Adam Bauman purported to file a motion for summary judgment. (Motion No. 3) The next day, on November 9, 2016, Mr. Bauman purported to withdraw that motion and replace it with a new motion for summary judgment. (Motion No. 4) Both motions were denominated by Mr. Bauman in filing them as a motion -3-3 of 5

4 for summary judgment in lieu of complaint. The Motion for Summary Judgment Must Be Denied 9. Mr. Bauman is NOT an attorney admitted to practice before the courts of the State of New York. Accordingly, Mr. Bauman may not act as attorney for plaintiff Seabreeze, CPLR 321(a), and his purported motion for summary judgment must be rejected as he is not competent to prosecute it. 10. This action is in the Commercial Division of the Court. Your Honor s Practices and Procedures direct that In lieu of filing Rule 19-a statements with summary judgment motions, the parties shall confer prior to moving for summary judgment and submit with the motion(s) one joint statement of material facts that the parties agree are not in dispute. Plaintiffs did not confer with defendants counsel prior to submitting the instant motion. Accordingly, no statement of material facts not in dispute has been prepared and plaintiffs did not submit any such document with the motion. Moreover, because the motion was not made at the time of the filing of the Request for Judicial Intervention or after discovery is complete, plaintiffs were subject to the pre-motion requirements of Commercial Division Rule 24. Obviously, they did not comply with them. For these additional reasons, the motion should be denied. 11. Plaintiffs filed their motion (November 8, 2016) five days after issue was joined (November 3, 2016). Defendants have had no chance to conduct any discovery. And because defendants are located in California and Japan, counsel has had only limited opportunities to confer. The motion plainly is premature. O'Toole v. County of Sullivan, 255 AD2d 799, 680 NYS2d -4-4 of 5

5 315 (3d Dept. 1998) ("In addition, summary judgment was not warranted on the first cause of action since there was only approximately seven days between the answer and the motion for summary judgment, which deprived plaintiffof a reasonable opportunity for disclosure.") 12. Finally, in filing the motion, Mr. Bauman denominated it as a "motion for summary judgment in lieu of complaint". Summary Judgment under CPLR 3213, however, is only available when the plaintiff does not file a complaint. NJ, 90 AD2d 95,98,455 NYS2d 852, 854 (2d Dept. 1982). 13. For all the foregoing reasons, defendants request that the Court deny plaintiffs' motion for summary judgment. If the Court concludes that the motion should be considered on the merits, defendants request a fuller opportunity to submit papers in opposition. Dated New Rochelle, New York November 28,2016 FREDERICK R. DETTMER Grossman v. Laurence Handprints of 5