FILED: NEW YORK COUNTY CLERK 12/22/2016 09:00 PM INDEX NO. 104059/2011 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/22/2016 1 of 31
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------x JIA WANG : : INDEX NO: 104059/2011 Plaintiff, : -against- : : : Affirmation SHIH CHIEN KANG, MIN TJIA : TRIGEM REALTY, LLC : : : Defendants. : ---------------------------------------------------------------------x I, Jia Wang, being duly sworn deposes and states under penatlies of perjury to the following, to wit: 1. I am the Plaintiff Jia Wang and I am fully familiar with the facts and circumstances s. surrounding the within issues, and I submit this Affidaivit in support of the motion under CPLR 4406 for an order: (a) Setting aside the decision issued on December 8, 2016 as being insistant with the law (b) Squashing Defendant Kang s testimony; (c) Setting aside the decision for wrongfully precluding material evidence admitted at trial but later had forgotten by the Court, for a new trial (d) nd for such other and further relief as this court deems just and proper. PRECEDURAL HISTORY 2. Plaintiff Wang began the instant action in 2011, to recover damages from unpaid distributions and expenses she was owed by Defendants Kang, Tjia by wrongfully dissolving an LLC the parties had formed in 2008, never paying expenses, profit distribution, and agreed upon salary to Plaintiff Wang; and to recover damages from unpaid construction, demolition, cleanup and renovation done for Kang and Tjia s building, 78 Franklin Street, by way for foreclosing on a mechanic s lien. Defendants imposed counter claim for entire amount of the lien. 2 of 31
3. During the course of the instant action between 2011 to 2015, Defendants 2013 motion to dismiss the action was denied in its entirety; Plaintiff s omnibus motion is granted granted all but 1 relief sought by Hon. Richard Braun. See decision dated May 1, 2015, annex as Exhibit 1. Plaintiff appealed for the 1 relief on grounds that Defendants forged the LLC ledger and appeal not granted. 4. On May 17 th, 18th and December 5 th, and 8 th 2016 the trial was heard in the Court of Hon. Arthur Engoron. 5. Decision was issued on December 8, 2016 against Plaintiff. No judgement has been entered. POINT I THE COURT ERRED IN LAW BY CREATING AN ORAL LEASE OF $6,000 PER MONTH WHEN NONE EXISTED UNDER MCKINNEY S GENERAL OBLIGATIONS LAW 5-701 6. It is acknowledged by all parties that there was no written lease, it is undisputed by all parties that the premises was occupied by LLC for a period of 3 years from May 2008 to May 2011. Based upon said facts it is clear that the Court could not have found a lease was in existence for a rent of $6,000.00 dollars based upon an alleged oral agreement testified to by Defendant Kang, for a period in excess of one year. See General Obligatioins Law Section 5-701. 5-703 Gen. Oblig. Conveyances and contracts concerning real property required to be in writing. 1). An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing. But this subdivision does not affect the power of a testator in the disposition of his real property by will; nor prevent any trust from arising or being extinguished by implication or operation of law, nor any declaration of trust from being proved by a writing subscribed by the person declaring the same. 3 of 31
2). A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing. 3). A contract to devise real property or establish a trust of real property, or any interest therein or right with reference thereto, is void unless the contract or some note or memorandum thereof is in writing and subscribed by the party to be charged therewith, or by his lawfully authorized agent. 7. At the 5/18/2016 trial, Kang testified, that Tirgem LLC had $6,000 monthly rent obligation for no defined size of space (at 78 Franklin Street). See Exhibit 2, Page 6. Line 9-15: Q And was that pursuant to a written lease or was there no lease? A I don't think there was a lease. Kang Trial Transcript Exhibit 2, Page 7, Line 6: Q And what was the monthly rent that Trigem Realty was supposed to pay? A I vaguely remember. About $6,000. Q And that's $6,000 a month? A Yes. Q And for how much space were they getting? A I don't think that was ever referred to. Q Now, they started off on the ground floor of 78Franklin Street; is that correct? A That's correct. (Emphasis added) But Kang s 5/18/2016 testimony at trial is also belied by his own Affidavit dated March 7, 2013, an exhibit adduced at trial by Plaintiff Wang, Exhibit 3 Page 2, 5: Trigem opened its office for business on the ground floor of 78 Franklin Street. No written lease was ever made. However, the parties agreed that once Trigem started earning income, it would pay a monthly rent of $6,000. 8. As can be seen by Kang s testimony there was no written lease; there was no definitive designation of the space (Square Footage) being charged rent for; and it was occupied from May 2008 until May 2011. Since Defendant by his own testimony admits to these facts it is clear that the court could not find that a lease was in existence, and that a rent of $6,000.00 dollars per month was due and 4 of 31
owing Defendants. It should also be noted that Defendant Kang also testified that it was allegedly agreed that However, the parties agreed that once Trigem started earning income, it would pay a monthly rent of $6,000. Thus no rent would be due and owed until Trigem was profitable and, as Defendants acknowledged at no point was it profitable during real estate market crush beginning in 2008, so again by their own admission no rent could have ever been due and owed. 9. In yet another of Kang s Affidavit of 3/14/2014, Kang wrote that the $6,000 outright lease obligation was an oral agreement, Exhibit 4, Kang Affidavit on March 14, 2013 Page 2, 4: Secondly, although Ms. Wang now denies that Trigem Realty LLC was obligated to pay rent, that was the original agreement, albeit an oral one. 10. There was never such oral commercial lease and Kang and TJia as landlords are barred by Statute of Frauds to create one. (1) there was no oral agreement as to said claim that $6,000.00 dollars would be paid per month by Trigem (and plaintiff denies that said meeting of the minds ever took place); (2) Kang never designated a specific area for Trigem to operate out of and in fact move Trigem to the basement level which was an illegal useage under the code it being designated only for storage space and not for commercial use; See Exhibit2, Page 7. (3) Defendants without permission from the Managing Member Wang withdrew $12,000.00 on 9/17/2008 and an additional $18,000.00 in 2009 and after the fact claiming it was rent and yet no profits had been earned by Trigem warranting this withdrawals, and in the 3 years of operation at no other time did Defendants ever attempt to seek rent payments even though on occasion there was in excess of $6,000 dollars in the corporate account. 11. It is not disputed by the parties a Dr. Kwak s Massage Beds Business was on the same commercial space with Trigem on 78 Franklin Street, ground floor, paying no rent to Defendants Kang and Tjia who were owners of 78 Franklin Street, Plaintiff s Exhibit 12, 13, 14, 15, 16 discribed below give detailed facts indicating 5 of 31
this $6,000 oral agreement is a fraud by Kang, Tjia, barred by Statute of Frauds. 12. It is well within the scope of Statute of Frauds to void similar creations of such orally agreed leases. See BPR Corp. v. Chmelecki Asset Mgt., Inc., 51 AD3d 715 [2008], Tringle v. Tringle, 40 AD3d 353 [2007]; MacKenzie v. MacKenzie, 13 AD3d 1010 [2004]; Venture Mfg. [Singapore] v. Matco Group, 6 AD3d 850 [2004]. 13. Based upon the above facts, evidence and testimony it is clear that the court was in error and that said decision with regards to the payment of rent must be reversed and the monies illegally appropriated in the amount of $30,000.00, together with the remaining of the monies left in Trigem s Cathay Bank account converted by Defendants, should be paid to Plaintiff as and for reimbursement for the $2,000 per month salary she was entitled to be paid but she never paid herself, by agreements made in writing with Defnedants, and for the unpaid out of pocket expenses she paid for Trigem. POINT II THE COURT ERRED IN LAW BY IMPOSING THE PENAL $86, 363 CONSTURCTION LIEN AGAINST PALINTIFF FOR WILLFUL AND FRAUDULENT EXAGERATION WHEN DEFENDANTS FAILED TO SHOW WILFULL AND FRAUDULENT EXAGERATION 14. Before the the penal damaged can only be considered against after the lien is proven by Defendants to be a fraud. Chichilnisky v. Trustees of Columbia Univ., 52 A.D.3d 206, 859 N.Y.S.2d 143 (1st Dep't 2008); Hudson View II Assocs. v. Gooden, 222 A.D.2d 163, 644 N.Y.S.2d 512 (1st Dep't 1996), Defendants carry the burden of proof. 15. Defendants Kang and Tjia s first counterclaim as shown in Exhibit 40 imposes the entire lien amount to be wilfull exaggeration, Page 3: FIRST COUNTERCLAIM The mechanic s lien filed by Jia Wang was fraudulent and wilfully exaggerated. Pursuant to Section 39-a of the Lien Law, defendants are entitled to recover form 6 of 31
Jia Wang their reasonable attorney s fees incurred in securing the discharge of the lien and an amount equal to the difference by which the amount claimed exceeds the amount actually due. By reason of the foregoing, defendants seek damages from Jia Wang in an amount to be determined but claimed to be in excess of $86, 363.00. 16. Since $86, 363 is counterclaim as fraud, Defendants Kang testified that no construction work wsa performed by Wang. The work was done by other people, offering no proof, no witness, no photo, no written or oral correspondence, nothing whatsoever, except for Kang s words on 5/18/2016 on direct and on 12/5/2016 on cross that the toilets were built by other people, and subbasement work was done by other people, not done by Ms. Wang. See Exhibit 2, pp.10 Line 8 - pp. 11 Line 10 pp. 29-30; Exhibit 2, p. 14 26. 17. But in Kang s prior court transcript submitted by Kang at the 5/18/2016 trial as Defendants Exihibit N, annexed here as Exhibit 6, Kang made a sworn testimony on 6/6/2011that the 2 toilets were built by Ms. Jia Wang, and her workers. Exhibit 6, Page 27, Line 13-23: Q. Other than the two bathrooms, the two toilets on the ground floor, and the removal of partition, do you know of any other work that Mr. Brigham did? A. Nothing on the building. Only thing I saw is Mr. Brigham installed on the concrete cinder blocks on cinder blocks in subbasement. Q. You saw materials? A. Nothing on the building. Q. But nothing to the building? A. Right. Mr. Eng: No further questions. 18. Significantly, Kang gave 2 opposing testimonies on the same subject of toilets at 78 Franklin Street, under oath on 6/6/2011 to Judge Peter Moulton, saying Plaintff Wang built the 2 bathrooms and 2 toilets Exhibit 6, Page 27, Line 13-23; Page15; Page 29, Line 20-26, Page 30 Line 2-5, and on 5/18/2016 to Judge Arthur Engoron saying Wang was not the one who built the 2 toilets, and some people other than Ms. Wang built the 2 toilets, See Exhibit 2, pp.10 Line 8 - pp. 11 7 of 31
Line 10 pp. 29-30. 19. What is more significant and noteworthy, is that Kang made opposing statements in 2011 and 2016 regarding Who built the 2 toilets on the ground floor of 78 Franklin Sstreet while being examined by the same attorney, Mr. Donald Eng who was also at the 5/18/2016 trial. 20. Further, Kang also stated in a prior sworn Affidavit dated 3/7/2013 in Exhibit 3, pp. 6-7, 7: The only discernable work done by Ms. Wang on the ground floor were two toilets near the rear of the premises, Kang s March 7, 2013 sworn Affidavit, stating the toilets were built by Plaintiff Ms. Wang, is self-contradictory to Kang s perjured 5/18/2016 testimony. 21. Determination of willful exaggeration of mechanic s lien requires proof that lienor deliberately and intentionally exaggerated lien amount. Barden & Robeson Corp. v. Czyz (3 rd Dept. 1997) 245 A.D. 2d 599, 655 N.Y.S.2d 422. 22. The burden of proof on a counterclaim to recover a penalty for willful exaggeration is upon the party claiming it. John H. Reetz, Inc., v. Stackler, 24 Misc 2d 291, 295-296; Consolidated Blassting Corp. v. Colabella Bros., 10 Misc 2d 913, 917-918; Defendants Tjia and Kang attempted to prove that other people performed the construction and other work, but their own prior affidavits bely Kang s testimony. 23. Kang, testified that the work Plaintiff Jia Wang claimed had done for 78 Franklin Street was done by others, not by Plaintiff Jia Wang, i.e. other people built the toilets, see Exhibit 2, pp.10 Line 8 - pp. 11 Line 10 pp. 29-30. Another person named Mustafa performed the subbasement work, not Plaintiff Jia Wang, Wang did not do that work. See Exhibit 2, p. 14-26. But Kang s testimony is belied by his own prior affidavits/testimony in Exhibit 3, Exhibit 6, and Exhibit 8. 8 of 31
In Exhibit 8, Chieh Shieh Kang s Affidavit of March 26 2013, sates on Page 2, paragraph 4: The first email, dated August 4, 2010, was a communication from Ms. Wang to Tjia and me stating that she had cleaned out the subceller. This was a clean-up project she undertook completely on her own. 24. Defendants Tjia and Kang had not adduced into evidence any proof at trial besides Kang s perjured testimony on 5/18/2016, to support such counterclaim to recover a penalty for willful exaggeration. 25. Plaintiff addued at trial Exhibit 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, as described below in evidence. In contract Defendants s own testimony and affidavits contradicted their counterclaim entire lien was willful exaggeration, and there was not a single document, email, photo or witness proving that the construction work, the renovation and the demolition and clean-up were in fact performed by others people, not by Ms. Wang, as Kang testified. 26. The discrepancy needed to be intentional as a matter of law. The opinion addressed in Minelli Constr. Co. v. Arben Corp. 1 AD3d 580 (2 Dept 2003) states: the fact that a lien may contain improper charges does not, in and of itself, establish that a plaintiff willfully exaggerated a lien (see Goodman v. Del-Sa-Co Foods, 15 NY2d 191 [1965]; Fidelity N.Y., FSB v. Kensington-Johnson Corp., supra). Section 39-a of the Lien Law is penal in nature, and must be strictly construed in favor of the person upon whom the penalty is sought to be imposed.' (Joe Smith, Inc. v. Otis-Charles Corp., 279 App. Div. 1, 4, affd. 304 N.Y. 684; Collins v. Peckham Road Corp., 18 A.D.2d 860; Durand Realty Co. v. Stolman, 197 Misc. 208, affd. 280 App. Div. 758.) 27. Here Defendants did not prove any portion was exaggerated. Even in cases when there is a finding that the lien was willfully exaggerated and hence void, the extent of such exaggeration were not found, nor requested to be found, as required to entitle defendant to recover under section 39-a of the Lien Law (Durand Realty 9 of 31
Co. v. Stolman, 197 Misc. 208, affd. 280 App. Div. 758). See Strongback Corp. v. N.E.D. Cambridge Ave. Dev. Corp. 25 A.D.3d 392 (1st Dept. 2006). 28. Tjia and Kang attempted by way of perjured testimony to show willful exaggeration, but failed to establish that A). There was no work done by Wang and work was done by some other people, the entire lien of $86,363 was the amount being exaggerated; B). The difference was caused by wilful exaggeration of the lienor. 29. The Court erred in law, for lack of showing, and in fact, for lack of evidence by Tjia and Kang on the difference between the value of work done and the amount claimed, and this difference is in fact willful exaggeration. The Court, by imposing the penal, entire amount of lien $86, 363 against Plaintiff is clearly in error. The Court should have found Kang s perjured testimony untrue. POINT III THE COURT ERRED IN LAW AND IN FACT ON VOIDING THE MECHANIC S LIEN 30. It is well established that "Inaccuracy in amount of lien, if no exaggeration is intended, does not void a mechanic's lien; willfulness also must be shown. Goldberger-Raabin, Inc., v. 74 Second Ave. Corp., 252 N.Y. 336. See Aeschlimann v. Presbyterian Hospital, 165 N.Y. 296." (Yonkers Bldrs. Supply Co. v. Luciano & Son, 269 N.Y. 171, 176.) 31. At trial Defendants Tjia and Kang had not made any showing that Plaintiff Wang did not do the work, or there was any discrepancy between actual work and work Plaintiff claimed, except Kang under oath making testimony about that other people, not Ms. Wang, did the work Wang claims she did, but Kang s own prior utterance in varies testimony Exhibit 6, and affidavit Exhibit 3 and 8, belied Kang s own perjured testimony made on 5/18/2016. 32. Plaintiff addued at trial Exhibit 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, as described below in evidence. In 10 of 31
contract Defendants s own testimony and affidavits contradicted their counterclaim entire lien was willful exaggeration, and there was not a single document, email, photo or witness proving that the construction work, the renovation and the demolition and clean-up were in fact performed by others people, not by Ms. Wang, as Kang testified. 33. The Cout errored in law and in fact on contrary of weight of evidence by vacating the lien without showing of the discrepancy, if any, was willful. POINT IV THE COURT ERRED IN LAW IMPOSING PENAL OF THE PENAL AMOUNT $86, 363 OF MECHANIC S LIEN WITHOUT JURY TRIAL 34. Whether a linor had deliberately and intentionally exaggerated amount of mechanics lien which was filed, making lien invalid, was issue of jury. Washington 1993 Inc. v. Reles 255 A.D.2d 745, 680 N.Y.S.2d 715 (3 rd Dept. 1998). There was no jury here. 35. When deciding the penal of the Defendants counterclaim with regards to contruction lien, Plaintiff has protected right to jury trial. Cowper Co, supra, and Stokes v. Johnston, 138 A.D.2d 481, 526 N.Y.S.2d 27 (2nd Dep't 1988). 36. The Court erred in law by imposing the entire amount of lien. POINT V THE COURT ERRED IN LAW BY VOIDING THE OPERATING AGREEMENT SIGNED BY ALL PARTIES 37. Parties did not dispute that the Operaing Agreement of Trigem Realty LLC as shown as Exhibit 17, are undisputed, signed by Wang, Tjia and Kang it clearly states that Section 8.2 (a) (b) of the Operating Agreement of partnership LLC of which Plaintiff and Defendants were Members, clearly directives regarding the liquidation process prior to the dissolution of the LLC. Exhibit 17: 8.2 (a) Should a liquidatioun event occur, the affairs shall be wound up - 11 of 31
including preparation of final financial statement and an accounting by and at the direction of the members. 8.2 (b) Final distribution to Members shall not be made until all liabilities have been satisfied and any contingent claims against the LLC have been resolved. 38. It is undisputed that Kang and Tjia shut down the LLC by simply locking the Plaintiff out of its office at 78 franklin Street in March 2011, without any liquidation and accounting to pay LLC debt of contract. 39. It is under dispute whether Kang and Tjia acted in breach of the Operating Agreement. 40. Also according to the Operating Agreement, Exhibit 17, Section 5, the Kang and Tjia must deposit $10, 000 capital each into LLC to become majority 80% members, but since they deposited the $20,000 on 9/18/2008 by making an $12,000 on 9/17/2008 withdrawal, one day before the deposit when there was no fund in LLC s account to support this $12,000, Kang and Tjia never become majority members, or had the voting power to dissolve Trigem, as provided by the Operating Agreement. 41. It is well settled that implicit in every contract is a promise of good faith and fair dealing, which is breached when a party to a contract acts in a manner that would deprive the other party of the right to receive the benefit of the contract. Jeffe v. Paramount Communications Inc., 222 A.D.2d 17, 22, 644 N.Y.S.2d 43 (1 st Dept 1996); see also Rowe v. Great Atlantic & Pacific Tea Co., 412 N.Y.S.2d 827 (1978). 42. The Court erred in law by voiding the Operating Agreement or finding the convenants of this agreement not legally binding. POINT VI DEFENDANT KANG S PURJURED TESTIMONY ON MAY 18, 2016 SHOULD BE SQUASHED 43. Kang perjured himself under oath by lying on major material fact at trial by the 12 of 31
following: A. Kang Lie At Trial #1: Other People, Not Ms. Wang, Built the Toilets 44. Kang knew that he was giving perjured testimony under oath regarding who built the toilets, as Kang told the Court on 5/18/2016 that another company built the toilets, because Kang knew he had made an affidavit saying that Ms. Wang built the 2 toilets dated March 7, 2013, this evidence was admitted at trial. See Kang s affidavit Exhibit 3, pp. 6-7, 7: The only discernable work done by Ms. Wang on the ground floor were two toilets near the rear of the premises, Kang s own March 7, 2013 sworn Affidavit, stating the toilets were built by Plaintiff Ms. Wang, directly discredited Kang s perjured 5/18/2016 testimony. 45. Kang s own affidavit confirms Plaintiff Gia Wang was doing the construction at the building. See Exhibit 3, 13 Affidavit by Kang: Brigham was the gentleman Ms. Wang brought in to do the construction. 46. Kang was no doubtedly perjuring himself on who built the bathrooms toilets knowing he was telling a lie under oath. 47. Plaintiff s email dated Jan 12, 2011 also shows that it was Ms. Wang and workers who built the bathrooms and toilets. Exhibit 5. 48. Kang also confirmed that Ms. Wang and her workers performed the construction of the toilets, among other minor things in Defendants own Exhibit, Kang Transcript at the Housing Court dated 6/6/2011, on a separate illegal lockout case, annexed here as Exhibit 6: Exhibit 6, Page 27, Line 13-23: Q. Other than the two bathrooms, the two toilets on the ground floor, and the removal of partition, do you know of any other work that Mr. Brigham did? 13 of 31
A. Nothing on the building. Only thing I saw is Mr. Brigham installed on the concrete cinder blocks on cinder blocks in subbasement. Q. You saw materials? A. Nothing on the building. Q. But nothing to the building? A. Right. Mr. Eng: No further questions. Exhibit 6, Page 29, Line 20-26, Page 30 Line 2-5: Q. Did you see work that was being done on the ground floor of 78 Franklin Street when you went those five times? A. I only saw maybe ten by ten, maybe ten by twelve sheet rock wall was existing there, was removed. And I saw two toilets was installed. That s it. Q. And what, if anything, did you do when you saw those? A. I ask Gia what did you do here. Q. And what was the response? A. She told me she wants to renovated the place to make it look very nice so it can be rented. 49. Kang clearly knew that Ms. Wang built the toilets when he testified on trial stating some other people built the toilets on 5/18/2016. 50. Kang s perjured testimony should be squashed. B. Kang s Lie At Trial #2: Mustafa, Not Ms. Wang, Performed the Subbasement Cleanup 51. Kang knew that he was giving perjured testimony under oath regarding who performed the cleanup of the subbasement, as Kang told the Court on 5/18/2016 that Mustafa, one of his employees, performed the work, because Kang knew he had made an affidavit referring to an email on Wang s performing the cleanup work at the subbasement. See Exhibit 7, an exhibit in evidence at the 6/17/2016 trial. 52. Kang also knew that he had made a prior affidavit stating that it was Ms. Wang 14 of 31
who performed the subbasement work completely on her own in his affidavit dated 2013, no mention of Mustafa was made, this was admitted at trial: Chieh Shieh Kang s Affidavit of March 26 2013, notarized under oath, states on Page 2, paragraph 4: The first email, dated August 4, 2010, was a communication from Ms. Wang to Tjia and me stating that she had cleaned out the subceller. This was a clean-up project she undertook completely on her own. Kang s March 26, 2013 Affidavit baring both Defendant Kang s and Tjia s signature is annexed here as Exhibit 8. 53. Both Tjia and Kang confirmed this fact of Plaintiff s work in the subbasement by signing on to Kang s affidavit in March 26, and 28, 2013. See Exhibit 8. 54. Throughout the 5-year plus litigation, Kang had always maintained that Ms. Wang clean out the subbasement on her own and never mentioned some Mustafa as a third party who did the work until his direct examination on 5/18/2016 at trial, and was impeached by his own affidavit dated March 26, 2013, Exhibit 8. 55. Throughout the trial Defendants had no other witnesses testifying to their statement of Mustafa performed the subbasement cleanup work. 56. Kang knew that he had made prior statements on Ms. Wang s work in the subbasement, so Kang knew he was lying when he stated the false statement that his employee Mustafa did the work in the subbasement. His perjured testimony should be squashed. C. Kang s Lie At Trial #3: The Subbasement Was Always Vacant and Locked 57. Kang knew that he was giving perjured affidavit on March 7, 2013 under oath by stating that subbasement of 78 Franklin Street was always vacant and locked. Exhibit 34, page 3, 13, Kang stated that: the subceller, which had always been vacant and locked, while it was never vacant or locked as Kang had a tenant there who left tons 15 of 31
and tons of mechanic s and industrial debris that required the cleaning up in Kang s own words, of several days, See Exhibit 2, p. 14, Line 23-26. 58. Kang also knowingly lied in his 2011 testimony about subbasement being vacant to deny Ms. Wang s work there, Exhibit 6: Kang Transcript 6/6/2011, page 33, Line 14: Q. Did you ever go to the sub-basement at 78 Franklin Street during that time period? A. Yes. Q. What, if anything, did you see there? A. Vacant. 59. Kang knew the subbasement was not vacant and locked because he knew Plaintiff performed the cleanup and renovation, and before that he had gone to court with people that were occupying the subbasement. See Exhibit 9. Court record. 60. Defendant Kang s own email dated April 2011 stated himself that the place was actually RANSACKED, See Exhibit 10. Delco has no working PC in the basement and the place was ransacked by themselves when they left. 61. And on 12/5/2016 at trial Kang reluctantly admitted that the subbasement was not always vacant and locked, and there was ATM machines and other junks in the subbasement, and there was a tenant named Lee Chan there. See Exhibit 11. 62. Thus Kang knowingly lied, saying the subbasement was always vacant and locked under oath both on March 7, 2013 in his affidavit and on June 6, 2011 at a Housing Court hearing, even though he knew the subbasement was not always vacant and locked and Ms. Wang the Plaintiff performed the cleanup and renovation work. 16 of 31
63. Kang s perjured testimony on 5/18/2016 should be squashed. D. Kang s Lie At Trial #4: The LLC Trigem Had A Fixed Rent of $6000 Per Month 64. Kang knew that he was giving perjured testimony under oath stating that the LLC was set to pay $6000 rent every month, See Exhibit 2, p. 7, Line 4-10. 65. Kang knew that if the LLC, in which Kang and Tjia were members, did not make money, there would be no rent, and there was never a fixed rent amount of $6000 payable to Kang and Tjia as building owners, as is clearly indicated by email in Exhibit 12: Gia and Ed, We need to agree on what month we re going to start paying Gia s salary and rent. My suggestion is, when we make our first sale, we take half of that revenue to pay the salary and the rent and keep the other half to continue the business operation 66. Kang knew that No rent amount is set, let alone $6000, and the rent, if any, is only taken out when LLC makes a sale, this is also reflected in Kang s May 16, 2008 email he sent regarding another Kwak s Massage Beds business sharing the same space at 78 Franklin Street with the LLC Trigem. See Exhibit 13: $0 < $14,000, Dr. Kwak pays us 50% of receipt of his service collected at 78 Franklin Street It is clear that both Tirgem and Dr. Kwak s Massage Business were paying rent only after the businesses makes revenue. There was not rent set for any. 67. LLC Trigem was sharing the ground floor space at 78 Franklin Street as Exhibit 13 and another email from Plaintiff dated August 2009 indicates in Exhibit 14, it is reasonable that both business had no set rent obligation, and only pays rent after sales revenue is made. 68. Tjia s email indicated that at the time nobody knew what the rent should be, definitely not $6000/month, sharing a space with a Massage Beds business when 17 of 31
the economy was suffering from a nation-wide recession starting 2008, Tjia asked in another email, annexed here as Exhibit 15, what the rent should be: Gia, what should we lower it to to be competitive? 69. Kang also knew it was at the most difficult time. See Kang email. Exhibit 16. 70. It is only reasonable that Defendant Kang and Tjia as 80% members of LLC Trigem for doing no work, and Plaintiff as 20% operating member, that they charge no rent for Trigem LLC to begin operating at 78 Franklin Street until the business starts to generate revenue, as Min Tjia s email indicates in Exhibit 12; and as 0% member of the Massage Beds business they had given the space for free to Massage Beds, before any sales revenue can be earned. So the $18,000 Kang and Tjia after revenue must be matched by Wang s salary, and Plaintiff never took any salary from the revenue as the parties agreed in Exhibit 12. 71. Thus when Trigem dissolve, Plaintiff was to be paid her share of the salary matching what was taken by Kang and Tjia, according to Exhibit 12. E. Kang s Lie At Trial #5: Kang and Tjia had Deposited $20,000 To Become 80% Owners of Trigem LLC 72. Kang knew that he was giving perjured testimony under oath stating that Kang and Tjia deposited $20,000 into Trigem s bank, Exhibit 2, p. 3, 10-16, to become 80% majority owners of the LLC at the formation of LLC, as required by the LLC s Operating Agreement, annexed here as Exhibit 17. 73. Kang adduced an Exhibit showing a 9/18/2008 deposit $20,000 into Trigem s bank on September 18, 2008, Exhibit 18. 74. As Exhibit 18, shows a withdrawal of $12,000, what Kang is hiding is that a withdrawal of $12,000 was made by Kang 1 day before this deposit. See check image, Exhibit 19. 75. As Exhibit 18 shows, there was no fund in the LLC bank to support this $12,000 as beginning balance was only $2,175.77 in Exhibit 18, the effect of Kang and 18 of 31
Tjia s withdrawal of $12,000 before the $20, 000 deposit effectively reduced $20,000 to $8000. 76. And since in September 2008 LLC did not make any sales revenue to support such withdrawal, it was not rent. See Exhibit 12, rent should only be applied when there is sales revenue. 77. Thus Kang and Tjia only deposited $8,000, and not $20,000 and thus they did not become LLC majority members as required by the Operating Agreement, or they had no voting power to dissolve Trigem LLC. 78. Kang attached a ledger of a $20,000 in his affidavit dated March 14, 2013, Exhibit 14, Page 2, 3. This is annexed here as Exhibit 20. 79. This ledger cannot be a real ledge because it is missing the 9/17/2008 $12,000 transaction reflected in the bank statement, as shown in Exhibit 18. 80. The LLC was dissolved in 2011 without liquidation and payout to Plaintiff, NYS dissolution form is annexed here as Exhibit 21, this ledger shows LLC activity in 2013, is obviously a forged, missing all the rest of the pages of ledger. 81. Kang s perjured testimony dated 5/18/2016 should be squashed. F. Kang s Lie At Trial #6: He Was Waiting for A Construction Plan in December 2010 and Was Not Given the Construction Plan 82. Kang had perjured when he said he asked for a plan in December 2010, See Exhibit 2, p. 18, Line 21 to p. 19, Line 5, because he knew he had reviewed the plan with Wang early that year, from time to time as the work went on, and again also in early November, 2010. 83. Kang and Tjia knew of the renovation which started in June 2010, as his March 7, 2013 Affidavit states, See Exhibit 3, pp. 2-3, paragraph 8, 9: After the ground floor premises at 78 Franklin Street had been vacant for approximately 6 months with no one expressing an interest in renting it, Ms. Wang offered to tear down some of the partition walls by the prior 19 of 31
tenant to make the space more attractive. Believing that the job would take no more than a few days, Tjia and I allowed Ms. Wang to proceed. Nothing was mentioned about the cost. 84. It is undisputed that Trigem moved to the basement on December 2009, so 6 months after that in June 2010, Kang and Tjia acknowledged and at least approved the plan to demolish the partition walls, and Plaintiff Wang was not working at 78 Franklin Street in secrecy as Kang depicted. 85. No work at 78 Franklin Street, including the 2 bathrooms, the partition walls, the electronic and lighting system, the subbasement trucking, the work at the backyard at the subbasement level were done in secrecy, as Kang himself testified that he was on the premises twice a week every month, Exhibit 6, Exhibit 6, from Defendants Exhibit at trial, Page 38. 86. Then in June through August 2010, Kang and Tjia accepted the work done in the subbasement by Plaintiff Exhibit 10, August 4 email between Wang, Tjia and Kang, Exhibit 8, Kang Affidavit, confirming Ms. Wang s work for the subbasement: 87. Photos for the subbasements projects were adduced at trial by Plaintiff, attached here as Exhibit 22, 23, 24, 25. None of these renovation work shown in these photos was done in secrecy without Kang s knowledge. 88. Kang visited the work at the subbasement level several times a week, Exhibit 6, p.38, as Ms. Wang and workers worked there, as he confirms: This was a clean-up project she undertook completely on her own. Exhibit 8, p.2. 89. Then Kang came to discuss the construction plan with Wang on about November 11, 2010. See Exhibit 26: Gia, 20 of 31
Could I see you at the store Tuesday? I d like to go over your plan with you. Note that here Kang does not cc his partner, Tjia. 90. Exhibit 27 showed Wang and Kang planning to meet regarding the plan. 91. Kang and Wang s meeting regarding the Construction Plan is memorialized in Kang 6/6/2011 Testimony, admitted into Evidence at the 5/18/2016 trial, Kang under oath confirmed that he had a conversation regarding the renovation of the first floor in early November 2010 Exhibit 6, Page 15, Line 11: Q. My question to you was in early November, did you have a conversation with her? So the first conversation you had with her is that she had this idea of renovating the first floor? A. Right. 92. Although it was not the first meeting, as Kang had already told Wang to proceed with the demolition of partition walls, it was at this time that Kang discussed the bathrooms construction on the ground floor. 93. On November 22, 2010, one of the five time he visited the building in November, See Exhibit 6, pp29-30 Line 20, Kang saw the following work done as described in Exhibit 28, that Kang observed what Wang and her workers did and work in progress after this meeting on the plan, by November 22, 2010. Exhibit 28: 1 bath is installed and working now since you and me walked inside. Partition walls demolished 7000-8000 pounds of wet sand in construction bag dug out in subbasement Subpomps fixed in basement New ACs installed on rear windows on the ground floor Truck loads of debris from the subbasement was taken out Building s iron panel and metal plate were fastened 21 of 31
94. A portion of construction work in Exhibit 28 was adduced by Plaintiff at the trial on 5/17/2016, and then again on 12/5/2016, Exhibit 29. 95. Kang expressed appreciation to work done by Plaintiff Wang, this is response 96. Th email from Kang annexed as Exhibit 30. 97. Exhibit 31 shows more working in progress, and these were all admitted at trial under Exhibit 14. 98. All work was done, and materials and labors were paid at Plaintiff s and her workers expenses, after Kang s illegal lockout on March 1, 2011, Wang never saw these tools and material again. 99. After the meeting in early November 2010, Exhibit 26, 27, 6, Page15, Line 11, going over the plan with Wang, and after seeing portions of the work completed at 78 Franklin Street, Exhibit 30, Kang then on December 1, 2010 began to ask for a plan. Exhibit 32, as if he hadn t already see any work done. 100. Kang demanded for new additional work and asked for plan even though he knew as he said he appreciated in Exhibit 30 the work already finished by November 22, 2010, such as one of the bathrooms toilets working already. 101. Email records dated November 8, 2010 in evidence, describes work in some detail, it is annexed here as Exhibit 33 as it was in evidence at trial. 102. Kang s knowledge of Plaintiff s and her worker s work is again reflected in yet another email by Kang on January 24, 2011, Exhibit 34: You must give us an acceptable date for Tom to finish the construction. Kang s knowledge of who wsa doing construction and his demand for construction work is clear in this Kang s email in evidence. 103. Kang s email in Exhibit 34 at least indicates that he knew the construction had began, and not as he claimed, never started. 104. Kang in the pretence on the same day, after demanding more construction work of Wang and her workers, asked for plan, Exhibit 35. 22 of 31
105. On the contrary to Kang s claim that the construction work was done without his knowledge, Kang in his 3/7/2013 sworn Affidavit acknowledged that he knew all along about Ms. Wang, Plaintiff s construction efforts in Exhibit 3, p. 3, 13: Brigham was the gentleman Ms. Wang brought in to do the construction.. 106. Yet Kang, knowing the construction was near completion as his own email indicated in Exhibit 34, asked again for a plan even though on the same day he had just urged Plaintiff to finish the work in Exhibit 34. Exhibit 35. 107. The weight of the evidence at trial adduced by both parties indicates Kang was knowingly perjuring on the issue of the construction to the unjust enrichment of Defendants at Defendants building 78 Frnaklin Street. G. Kang s Lie At Trial #8: Kang Did Not Know About Any Barter Deal with Tom Brigham 108. Kang knew that he was giving perjured testimony under oath stating was shocked when he saw a printer machine in the subbasement Exhibit 2, Page 18, Line 6-8, because Kang knew he had on 6/6/2011 made a prior testimony stating that he was aware, agreed and did not object to the barter deal with Tom at the subbasement: Exhibit 6, Page 34, Line 3-4: Q. Did you ever reject a barter deal? A. No I did not. 109. Kang had known and agreed to the barter deal all along, but when Tom first moved the printer machine in the subbasement, Kang demanded more work from Plaintiff and her worker, Exhibit 34 and before the barter deal could begin, as the construction was near completion, Kang changed the locks on March 1, 2011 and this led to this lawsuit. 23 of 31
110. Kang s perjured testimony should be squashed. H. Kang s Lie At Trial #9: He First Saw A Printer in Subbasement on November 22, 2010 111. Kang knew that he was giving perjured testimony under oath regarding the month and day he saw a printer machine in subbasement, Kang told the Court on 5/18/2016 that it was November 22, 2010, see Exhibit 2, Page 18, Line 3-8; because Kang knew on 6/6/2011 he gave a prior testimony stating he first saw the printer in January 2011 Exhibit 6, Page 18-19: Q. Did there come a time you were able to go inside of the subbasement level? A. Yes Q. When was that? A. I think around early January sometime. Q. Please tell the Court what happened? A. I checked to see if they maybe were inside from time to time, sometimes in the morning, sometimes evenings, sometimes midday. I couldn t find them because they hardly there. And one day, just as I think maybe one morning I was there and I found that the sub-basement door was opened. There was no locked. So I opened the door to see who inside and I found Tom there. Q. What was Tom doing? A. Tom, I think, he was dozing off there. Q. Did you have a conversation with Tom? A. I did. Q. What did you say to him, what did he say to you? A.No I was totally shocked. I never heard about it. 24 of 31
Q. And there is a printing machine in the basement is that correct? A. That s correct. Q. When was the first time you saw that printing machine? A. That was the first time. I. Kang s Lie At Trial #10. He Did Not Visit 78 Franklin Street Between August 2010 and November 22, 2010; And That He Visited Once or Two Times A Month 112. Kang knew that he was giving perjured testimony under oath stating that he did not had not visited 78 Franklin Street between August 2010 to November 22, 2010, Exhibit 2, p. 5, Line 15-17; Page 17, Line 5-11, or that he visited once or twice a month. because Kang knew he had testified earlier 2011 that he went to 78 Franklin Street usually weekly. 113. Exhibit 6, (Defendants Exhibit N) at trial, Page 38, Kang s 2011 testimony: Q. Is there anybody who is supposed to be on the premises frequently, as to oversee the daily operations of the building? A. Because I live only a few blocks away, so I walk by there whenever I pass there. Page 42, Line 5: Q. How many times did you go to the premises in December of 2010? A. I would say about six -- five, six times. Q. What about in January of 2011? A. Same. I visit there usually weekly, once or twice a week. Q. What about February 2011? A. About the same. Q. The Same? 25 of 31
A. Same. Q. March 2011? A. Same. Every month I go. I live close by, I mentioned. 114. It is plain that Kang knowingly lied under oath on 5/18/2016 about the times he visited 78 Franklin Street so that he could claim that he did not observe the construction work including construction of the bathrooms by Plaintiff. 115. Kang s perjured testimony should be squashed. J. Kang s At Trial #11: Plaintiff Had No Staff, and Plaintiff Removed All Possession From 78 Franklin Street By February 14, 2011 116. Kang knew that he was giving perjured testimony under oath stating that Plaintiff had taken everything from 78 Franklin Street February 14, 2011, and that Plaintiff lost nothing due to Kang s wrongful eviction, and that Kang never send any eviction notice to Trigem, before he changed the locks. If Kang claims Trgiem was a oral lease tenant, then he knew he need to properly evict Trigem. Exhibit 2, p. 21 Line 19-21. 117. The email by Kang dated March 9, 2011 showed Kang s knowledge of Plaintiff s properties at 78 Franklin Street after February 14, 2011. Exhibit 36. 118. At trial on cross examination dated 12/5/2016 Kang acknowledged that he knew some of Trigem s ataff on the New York State record Exhibit 37, proving his lied when saying that Trigem had no other people working there. Exhibit 4, Page 4, 12. 119. Plaintiff made timely objection regarding Kang s perjury, See Exhibit 2, Page 19, Line 18-19. The Court erred in law as to not squash Kang s testimony. POINT VI 26 of 31
THE COURT ERRED IN USING THE MAYFLOWER TRANSACTION FOR THE ADJUDICATION OF THE CONSTRUCTION LIEN 120. Kang and Tjia introduced into evidence a case, Wang v. Mayflower, in which Plaintiff Wang sues to recover real estate commission earned for the sale of a hotel site in Queens, New York, Defendants contends that this shows Wang was doing other deals on her own that should have been Trigem s deal, since the transaction consummated in 2010, and Trigem operated 8/2008 1/2011. See Exhibit 38 annexed herewith, Wang v. Mayflower. 121. On paragraph 33 of Exhibit 38, Court record clearly states: 33. That on a date not presently known by the plaintiff, sometime in July 2010, the defendants scheduled a closing date to close title to the subject property. 34. That the defendants intentionally failed to disclose to WANG the scheduled closing date of the sale of the subject property. 37. That the defendants intentionally failed to disclose to WANG that the subject property closed title on or about July 2010. 122. Wang had absolutely no way, during Trigem s operation, have found out about the Mayflower transaction in 2010, and bring the sales revenue from Mayflower into Trigem beofore 2012. See Kang email and Trigem s dissolution record Exhibit 21. 123. Kang had announced the end of Trigem LLC on January 31, 2011. Exhibit 39. 124. Kang and Tjia mislead the Court by stating that the Mayflower revenue was known to Wang and earned by Wang during the LLC s 2008-2011operation. 125. Mayflower case is in no way an indication that Wang was making any deal out of Trigem, and Wang was not making any single deal out out Trigem, and Kang and Tjia may not use Mayflower to discredit Wang on the construction work. 126. Wang could not have possibly used Trigem as the Plaintiff in the Mayflower case, as Trigem was no loner an entity when the case commenced in 2012, Exhibit 21, 27 of 31
3839. Exhibit 40 shows Kang s affidavit Trigem closed. Court erred in finding the Mayflower case a proof for the mechanic s lien to be willful and fraudulent exageration. POINT VII THE COURT ERRED IN ALLOWING DEFENDANTS TO IMPOSE A COUNTERCMAIM THEY WITHDREW AT TRIAL MS. WANG MISUSED TRIGEM S MONEY 127. Defendants Kang and Tjia withdrew some counterclaims including that Ms. Wang misuse Trigem s money at trial on 5/18/2016. See Exhibit 41. 128. Kang and Tjia s Exhibit bank checks, annxed here as Exhibit 42, indicated 2 withdrawals of $8,100 by Wang, Kang and Tjia saying Wang of taking this money they reimbursed Wang for her construction. 129. Operating Agreement designated Wang as the only operating member, and soly decided for Trigem s spending, and had authority to use Trigem money in the bank during operation, and when Kang and Tjia withdrew the counterclaim, they are precluded from then saying Wang misused money designated for Trigem LLC s operation for other purposes. 130. Wang is entitled to take salary per month see Exhibit 12, and her out of pocked expenses paid for Trigem s operation in OLR, telephone bill Trigem phone # being 212 625 8800, were never reimbursed. See Exhibit 43, 44. 131. It is clear viewing the checks, and the paid invoices that Wang s out-of-pocket expeneses were not compensated, and Verizon still have Wang responsible for Trigem s phone bills since Kang and Tjia converted the LLC s monies in 2011. 132. Wang s salary was $2,000 as the parties agreed on 9/12/2008, that Wang had not taken out and was entitle to take out at Trigem s dissolution. See Exhibit 45. 133. Wang s expenses such as shown in Exhibit 43, 44, were never reimbursed and looking through the checks, see Exhibit 42, there were no reimbursement of OLR 28 of 31
after mid 2009 while Wang still paid with her own money. Exhibit 46 shows portion of receipts of constrction materials, other were in the building when Kang changed locks on March 1 2011. See Exhibit 46. 134. In addition to out of pocket expenses unreimbursed by Trigem, there were commission Wang was entiltled to pay her self but did not pay yet, as she is entitled to such commission via the Operating Agreement. 135. Defendants Kang and Tjia can not claim Wang reimbursed herself as they claim in their affirmation Exhibit 47, Page 5, 19. The accompanying affidavit f Chih Shien Kang denies that there was any agreement or discussion of compensation. He adds that he and Tjia would not have objected to Ms. Wang being reimbursed for her expenses and believe that she was reimbursed. Kang and Tjia counterclaims no work was ever done, or was done by other people, then they would not be not objecting Wang s reimbursement. 136. The Court erred in allowing Kang and Tjia to claim that Wang misused Trigem s money to pay for her construction fee after such counterclaim was withdrew and waived by Defendants at trial. POINT VIII THE COURT ERRED IN PRECLUDING MATERIAL EVIDENCE CONTAINTED IN PLAINTIFF S EXHIBIT 17 AND OR 37 AFTER IT WAS ADMITTED IT TWICE AT TRIAL 137. The Court admitted a Construction Report, here as Exhibit 29, at trial on the first day 5/17/2016, as Plaintiff s Exhibit 17, and the Court even asked a question regarding the photos to which Plaintiff answered that she always likes to take self-portraits and thus had a camera handy and thus took some of the construction photos in the Exhibits. Then on 12/5/2016, the Court forgot this Construction Report was admitted, saying the Construction Report as a portion of the email to Tjia was not admitted, Court said only the first page of that email was admitted on 5/17/2016. See Exhibit 29, last page. 29 of 31
Plaintiff then on 12/5/2016 again submitted Construction Report and Court again admitted the Construction Report itself, see Exhibit 29. And the noted it on the first page of the report as Plaintiff s Exhibit 37, See Exhibit 29. 138. But on 12/8/2016, the Court forgot this Construction Report was admitted, when Plaintiff used the Construction Report for her rebutting witness, Zoli Kovacs and Larry Powell, Court said this Exhibit was not admitted, and precluded the using of such crucial material evidence to be discussed when examining in the Trial. 139. The OLR invoices invoices admitted at trial, Exhibit 43, was dismissed by the Court as subject to credibility, but business records and corporate invoices are exceptions to the Hearsay Rule under New York Law. 140. Plaintiff is clearly prejudiced by the Court s errors on these crucial and material evidence, and the decision should be set aside for a new trial. POINT IX ADDENDUM TO ASSIST THE COURT REGARDING PLAINTIFF S ANSWER TO THE COURT S QUESION ON TAKING SELF- PORTRAINTS 141. On the first trial day 5/17/2016, Plaintiff submitted some photos showing construction work and tools, the Court asked Why were you taking photos? Plaintif answered that she always like to take her self-portriats, and happened to have her camera around sometimes during construction and took those photos. 142. While the Court thought this was the lie, it is nonetheless very true that Plaintiff made a lot of self-portraits, these photos were taken on the roof of the building where she did construction, the background is mistakenly 78 Franklin Street, the other is 35 Walker St after she sold the building, out of the many portraits Plaitiff made. See Addendum Photos. 143. The portrait habit has no baring on the lawsuit, but this was crucial for the Court 30 of 31