FILED NEW YORK COUNTY CLERK 05/10/2017 0136 PM INDEX NO. 655186/2016 NYSCEF DOC. NO. 72 RECEIVED NYSCEF 05/10/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------- x NEWMARK SOUTHERN REGION LLC, - vs. - THOMAS BRENT BARNES a/k/a BRENT BARNES, Plaintiff, Defendant. ------------------------------------------------------------------- x Index No. 655186/2016 ORAL ARGUMENT REQUESTED REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF NEWMARK SOUTHERN REGION LLC S MOTION TO DISMISS DEFENDANT S AMENDED COUNTERCLAIMS Michael S. Popok, Deputy General Counsel Emily L. Milligan, Assistant General Counsel Katelyn M. Beaudette, Counsel 110 E. 59th Street, 7th Floor New York, New York 10022 Attorneys for Plaintiff Newmark Southern Region LLC May 10, 2017 1 of 10
FILED NEW YORK COUNTY CLERK 05/10/2017 0136 PM INDEX NO. 655186/2016 NYSCEF DOC. NO. 72 RECEIVED NYSCEF 05/10/2017 Page i of 7 TABLE OF CONTENTS I. PRELIMINARY STATEMENT... 1 II. ARGUMENT... 2 A. Barnes Was Properly Served With Plaintiff s Motion to Dismiss... 2 B. Even If a Defect in Service Occurred, It Should Be Disregarded by the Court under Controlling New York Law... 3 C. The Cases Cited by Barnes are Inapposite... 5 D. Barnes Has Not Substantively Addressed Plaintiff s Motion... 6 III. CONCLUSION... 6 i 2 of 10
FILED NEW YORK COUNTY CLERK 05/10/2017 0136 PM INDEX NO. 655186/2016 NYSCEF DOC. NO. 72 RECEIVED NYSCEF 05/10/2017 Page ii of 7 TABLE OF AUTHORITIES Cases Page(s) Balancio v. American Optical Corp., 66 N.Y.2d 750 (1985)...4, 5 Cecere v. Peters, 270 A.D.2d 49, 704 N.Y.S.2d 223 (1st Dep t 2000)...4, 5 European American Bank v. Legum, 248 A.D.2d 206, 669 N.Y.S.2d 595 (1st Dep t 1998)...5 Federal National Mortgage Assoc. v. Singer, 20 N.Y.S.3d 291 (Sup. Ct. N.Y. Cty. July 15, 2015)...5 Kue Mee Realty Corp. v. Louie, 295 A.D.2d 263, 743 N.Y.S.2d 863 (1st Dep t 2002)...5 Perez v. Villamil, 19 A.D.3d 501, 798 N.Y.S.2d 481 (2d Dep t 2005)...5 Ruine v. Hines, 57 A.D.3d 369 871 N.Y.S.2d 14 (1st Dep t 2008)...5 Solow v. Avon Products, Inc., 301 A.D.2d 441, 752 N.Y.S.2d 887 (1 st Dep t 2003)...6 Wilson v. Nembhardt, 180 A.D.2d 731, 580 N.Y.S.2d 70 (2d Dep t 1992)...4, 5 Statutes New York Civil Procedure Law Sections 3211(a)(1) and (a)(7)...1 Other Authorities CPLR 3216...4 CPLR Article 78...5 CPLR 2001...3, 4, 6 CPLR 2101(f)...3, 4, 6 CPLR 3211(a)(1)...6 CPLR 3211(a)(7)...6 ii 3 of 10
FILED NEW YORK COUNTY CLERK 05/10/2017 0136 PM INDEX NO. 655186/2016 NYSCEF DOC. NO. 72 RECEIVED NYSCEF 05/10/2017 Page 1 of 7 Plaintiff Newmark, 1 by and through its undersigned counsel, submits this reply memorandum of law in further support of its motion to dismiss the Amended Counterclaims (the Motion ) in their entirety pursuant to Sections 3211(a)(1) and (a)(7) of the New York Civil Procedure Law and Rules ( CPLR ). I. PRELIMINARY STATEMENT Newmark initiated this lawsuit to seek recovery of funds and other property that were stolen by Barnes from the Company. In his counterclaims, Barnes brought four causes of action against Newmark in an attempt to gain some leverage against the Company in the absence of a meritorious defense. In its Motion, Newmark argued that all four causes of action have no standing in law or fact and should therefore be dismissed in their entirety. Now, in opposition to Newmark s Motion, Barnes further proves that his claims are meritless. Barnes ignores the substance of Newmark s arguments, and instead focuses on a few words in the Order to Show Cause that was edited and signed by this Court, insisting that the Motion was not properly served on him under that Order s directive. Instead of engaging with Newmark s substantive arguments, he attempts to skate by the pleading stage on a parsed reading of the Court s Order, insisting that in addition to receiving the Motion papers by the Court s e-filing system, he should have received them in a courtesy email from Plaintiff. However, the alleged defect that he invents does not exist Barnes characterization of the language in the Order to Show Cause is wrong or at least highly implausible, he was properly served with Newmark s Motion on March 28, 2017 via the New York State Courts Electronic Filing ( NYSCEF ) system, and he admits that he received Plaintiff s moving papers in a timely 1 Capitalized terms not defined herein shall have the meanings assigned to them in Plaintiff s opening Memorandum of Law in Support of Plaintiff s Motion to Dismiss the Amended Counterclaims, dated March 22, 2017. 1 4 of 10
FILED NEW YORK COUNTY CLERK 05/10/2017 0136 PM INDEX NO. 655186/2016 NYSCEF DOC. NO. 72 RECEIVED NYSCEF 05/10/2017 Page 2 of 7 matter through NYSCEF. Moreover, even if there was some defect in service under the Order (and there was not), Plaintiff should be given leave to refile the Motion so as to require Barnes to properly oppose it. II. ARGUMENT A. Barnes Was Properly Served With Plaintiff s Motion to Dismiss In his opposition, Barnes sole argument against Newmark s Motion is that Newmark s counsel did not follow up its service of the Motion via NYSCEF with a courtesy email forwarding the documents that had been filed to Barnes counsel. 2 Barnes makes this argument despite the fact that his counsel admits receiving the e-filing notifications of the Motion, with links to the relevant documents, from NYSCEF. See Ex. E to Knapp Affirmation, 6. Barnes relies on a parsed reading of the Order to Show Cause, which states that it is further ORDERED that sufficient cause being alleged [previously, appearing ] therefor, service of a copy of this Order to Show Cause, and the papers upon which this Order is granted, upon defendant or his attorney at the law firm Sigel & Reiner, LLP, by electronic filing and courtesy copy by e-mail is deemed good and sufficient service of this Order upon defendant. Ex. C to Knapp Affirmation, at 1. The Court made a few additional handwritten changes to this sentence, notably writing NYSCEF over the portion of the text that read electronic filing and courtesy copy by e-mail and on/by 3-29-17 over the portion of the text that read good and sufficient service of this Order upon defendant. Id. While Plaintiff agrees that it may be slightly ambiguous as to how the Court intended these handwritten edits to be inserted into the text, a reasonable person could read the directive as indicating that the Court considered service 2 To the extent Barnes counsel is also attempting to argue that Newmark s opposition to Barnes motion to dismiss the Complaint (Motion Sequence 001) was not properly served, such argument is not timely, was not included in Defendant s reply to that motion, and is inappropriately raised as an add-on here. Regardless, for the same reasons as outlined here, that opposition was served on Barnes, who does not dispute the timely receipt of the opposition via NYSCEF. 2 5 of 10
FILED NEW YORK COUNTY CLERK 05/10/2017 0136 PM INDEX NO. 655186/2016 NYSCEF DOC. NO. 72 RECEIVED NYSCEF 05/10/2017 Page 3 of 7 of the Order and motion papers via NYSCEF to be good and sufficient service as of March 29, 2017. As such, Plaintiff s reliance on NYSCEF to effectuate service was entirely reasonable, was consistent with the Order, and resulted in Barnes unquestionably receiving the Motion papers. B. Even If a Defect in Service Occurred, It Should Be Disregarded by the Court under Controlling New York Law Defendant s argument that the failure to provide a courtesy email should result in a denial of Plaintiff s Motion runs in direct contravention of the CPLR. Under the CPLR, courts are empowered to disregard mistakes in the form of papers or the filing process where no substantial right of a party is prejudiced. First, CPLR 2001 provides that At any stage of an action... the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid. (emphasis added). Second, CPLR 2101(f) similarly provides that A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given. Here, any defect in the Motion resulting from the failure to send a duplicative courtesy copy to Defendant s counsel should be disregarded because no prejudice to a substantial right of Defendant arose. Indeed, counsel admits receiving the e- filing notifications of the Motion from NYSCEF. See Ex. E to Knapp Affirmation, 6. As a result, Defendant had every opportunity to oppose the motion, and there is no prejudice of any kind. 3 3 Even if there was substantial prejudice (which there is not), the Plaintiff should be permitted to correct the mistake under CPLR 2001 and 2101(f) by refiling the Motion and providing the courtesy email as demanded by Defendant. 3 6 of 10
FILED NEW YORK COUNTY CLERK 05/10/2017 0136 PM INDEX NO. 655186/2016 NYSCEF DOC. NO. 72 RECEIVED NYSCEF 05/10/2017 Page 4 of 7 Moreover, the Court of Appeals has expressly rejected arguments, like those pressed by Defendant here, that elevate form over substance in the service of motion papers. Balancio v. American Optical Corp., 66 N.Y.2d 750, 752 (1985). As explained by the Court of Appeals in a case involving a motion to dismiss for failure to prosecute, [t]he failure to serve a CPLR 3216 demand by registered or certified mail is a procedural irregularity and, absent a showing of prejudice to a substantial right of a plaintiff, courts should not deny, as jurisdictionally defective, a defendant s motion to dismiss for neglect to prosecute. Id; see also Cecere v. Peters, 270 A.D.2d 49, 50, 704 N.Y.S.2d 223 (1st Dep t 2000) ( Defendants nonconforming mailing amounted to no more than a procedural irregularity and, as such, did not constitute a jurisdictional impediment to defendants ensuing motions to dismiss for failure to prosecute. ). Similarly, in Wilson v. Nembhardt, 180 A.D.2d 731, 732-733, 580 N.Y.S.2d 70 (2d Dep t 1992), the court rejected the plaintiff s argument that a motion to dismiss for failure to prosecute should be denied on the basis that service of the motion was made at the residence of the plaintiff s attorney, rather than at the attorney s office. The court concluded that the fact remains that the plaintiff s attorney admittedly received the notice on March 16, 1988, at her residence. In light of the plaintiff s attorney s admission of its receipt, the service of the 90-day notice at her residence rather than at her office does not constitute a proper ground upon which to deny the appellant s motion. Wilson, 180 A.D.2d at 733. Here, counsel for Barnes indisputably received the Plaintiff s Motion papers through the Court s NYSCEF system. See Ex. E to Knapp Affirmation, 6. At most, the failure to provide a duplicate courtesy copy of the papers was a procedural irregularity, and did not result in prejudice to any substantial right of the Defendant since his counsel admits to timely receipt of the papers. See CPLR 2001; 2101(f). Under both the CPLR and long-standing precedent, 4 7 of 10
FILED NEW YORK COUNTY CLERK 05/10/2017 0136 PM INDEX NO. 655186/2016 NYSCEF DOC. NO. 72 RECEIVED NYSCEF 05/10/2017 Page 5 of 7 Barnes request that Plaintiff s Motion be denied on the basis that his counsel did not receive a duplicative courtesy copy of the Motion should be denied. Balancio, 66 N.Y.2d at 752; Cecere, 270 A.D.2d at 49; Wilson, 180 A.D.2d at 733; see also Perez v. Villamil, 19 A.D.3d 501, 502, 798 N.Y.S.2d 481 (2d Dep t 2005) ( The fact that the father s attorney was not served with a copy of the mother s objections was an irregularity which the Family Court properly disregarded, as the attorney actually obtained a copy of the objections and no prejudice resulted. ); Federal National Mortgage Assoc. v. Singer, 20 N.Y.S.3d 291, at *10 (Sup. Ct. N.Y. Cty. July 15, 2015) (motion was still considered under CPLR 2001, over opponent s objection, even though it was never correctly filed with the court). C. The Cases Cited by Barnes are Inapposite None of the cases that Barnes cites in support of his argument are relevant to the current context they all involve attempts to serve a party at the commencement of an action, and all are dismissed on jurisdictional grounds for failure to serve at the outset of a litigation. See, e.g., Ruine v. Hines, 57 A.D.3d 369, 370 871 N.Y.S.2d 14 (1st Dep t 2008) (affirming dismissal of CPLR Article 78 petition when pro se petitioner failed to effect service by first class mail); Kue Mee Realty Corp. v. Louie, 295 A.D.2d 263, 263-64, 743 N.Y.S.2d 863 (1st Dep t 2002) (complaint dismissed for lack of personal jurisdiction when plaintiff attempted to serve via nail and mail instead of personal service); European American Bank v. Legum, 248 A.D.2d 206, 208, 669 N.Y.S.2d 595 (1st Dep t 1998) (default against defendant vacated when initiation of turnover petition was served missing two pages of the show cause order). None of these cases address the present situation, where all parties were properly served at the outset of the litigation, are represented by counsel, are actively engaged in an ongoing litigation, and are receiving all filings through the NYSCEF system. Here, the court has already established jurisdiction over 5 8 of 10
FILED NEW YORK COUNTY CLERK 05/10/2017 0136 PM INDEX NO. 655186/2016 NYSCEF DOC. NO. 72 RECEIVED NYSCEF 05/10/2017 Page 6 of 7 Barnes, as there is no argument that the Complaint itself was not properly served nor is there any dispute that Barnes counsel properly received the opposition papers via NYSCEF. 4 D. Barnes Has Not Substantively Addressed Plaintiff s Motion In focusing his opposition on a perceived lack of service under a strained interpretation of the Order to Show Cause (while conceding that he received the motion and supporting papers), Barnes entirely forgoes responding to any of Newmark s arguments on the merits. Plaintiff opposes any attempt by Defendant to file a sur-reply, which is entirely unnecessary here since he had every opportunity to respond to Plaintiff s substantive arguments in his opposition and chose not to do so. See Solow v. Avon Products, Inc., 301 A.D.2d 441, 752 N.Y.S.2d 887 (1 st Dep t 2003) (rejecting arguments improperly made by party for first time in sur-reply). III. CONCLUSION For the foregoing reasons and the reasons set forth in Plaintiff s opening brief, Barnes has no legal grounds to bring his counterclaims, and they should be dismissed in their entirety. Barnes claims should be dismissed under CPLR 3211(a)(1) because the documentary evidence in this case the Agreement and Handbook that Barnes refers to in his Amended Counterclaims conclusively establish that Newmark cannot be liable for the causes of action that Barnes alleges, and Barnes claims should be dismissed under CPLR 3211(a)(7) because they fail to state causes of action upon which relief can be granted. 4 Should this Court find that a separate courtesy email to Barnes counsel was required for proper service of the Motion and that the Motion should be denied on that basis, Plaintiff respectfully requests that the Motion should be denied without prejudice with leave to refile under CPLR 2001 and 2101(f). 6 9 of 10
FILED NEW YORK COUNTY CLERK 05/10/2017 0136 PM INDEX NO. 655186/2016 NYSCEF DOC. NO. 72 RECEIVED NYSCEF 05/10/2017 Page 7 of 7 Dated May 10, 2017 New York, New York /s/ Emily L. Milligan Michael S. Popok, Deputy General Counsel Emily L. Milligan, Assistant General Counsel Katelyn M. Beaudette, Counsel 110 E. 59th Street, 7th Floor New York, NY 10022 (212) 610-3578 (MSP) Attorneys for Plaintiff Newmark Southern Region LLC 7 10 of 10