NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/01/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --- ------------- ---X PATRICIA RYBNIK Plaintiff(s)/Petitioner(s), Index No. 158679/2016 - against - MANHATTAN WEST HOTEL, MW 303 HOTEL, et.al. Defendant(s)/Respondent(s). - ----------- x NOTICE TO COUNTY CLERK - CPLR 8019(c) By order dated April 26, 2018, and enteredon April 27, 2018, the Court directed the County Clerk to make an entry on the docket of this matter. As required by CPLR 8019 (c), notice of the order is hereby given to the County Clerk with the request that the County Clerk make such entry. Dated: May 1, 2018 Jodi J. Jaffe (Name) Jaffe Glenn Law Group (Firm) 301 North Harrison St.9F, A (Address) Princeton, NJ 08540 201-687-9977 201-595-0308 jjaffe@jaffeglenn.com (Phone) (Fax) (E-Mail) Attorney(s) for Plaintiff [THE ORDER MUST ACCOMPANY THIS NOTICE AS A SINGLE PDF] 3/19/12 1 of 6
NYSCEF FILED DOC. : NEW NO. 48YORK COUNTY CLERK 5 2 1 4 : 31 P RECEIVED NYSCEF: 05/01/2018 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 05/01/2018 JatTe Glenn Law Group, P.A. 301 North Harrison Street Suite 9F, 0306 Princeton, NJ 08540 Attorneys for Plaintiff SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PATRICIA I' Plaintiff v. RYBNIK NOTICE OF ENTRY Index No: 158679/2016 MANHATTAN WEST HOTEL, MW303 HOTEL, et. at Defendants. PLEASE TAKE NOTICE that the attached is a true copy of an order in this matter that was entered in the office of the Clerk of the Supreme Court, New York County on the 26d' day ofapril, 2018. Respectfu l y Su,bmitted, I I,/ Jodi f. Jaffe, E quire JAFFE GLENN LAW GROUP, P.A. 301 North Harrison Street, Suite 9F, 0306 Princeton, New Jersey 08540 Telephone: (201) 687-9977 Facsimile: (201) 595-0308 E-mail: JJaffe@JaffeGlenn.com New York Bar No..: 2593119 Attorneys for Plaintiff TO: Stephen Song, Esq. Law Offices of T. Stephen Song, P.C. 15408 Northern Blvd. Flushing, NY 11354 Attorneys for Defendants MW 303 Corp.. et.al. and Joel Lim 1 of 5 2 of 6
NYSCEF FILED DOC. : NO. NEW 48YORK COUNTY CLERK 05 /01/2018 04 : 31 PN RECEIVED NYSCEF: 05/01/2018 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 05/01/2018 JSL Law Offices, P.C. Jae S. Lee, Esq. JSL LAW OFFICES, P.C. 163.10 Northern Blvd., Suite 205 Flushing, New York 11358 Attorneys for Defendants Yong Soon him 2 of 5 3 of 6
FILED: NEW YORK COUNTY CLERK 05/01/2018 04:31 PM) RECE NJSCEN f58pn&%18 8Ö 108 f S 8 NY W ORK COUNTY CLERK 04. RECEIVED NYSCEF: 04/27/2018 NYSCEF DOC. NO. 46 4. NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/01/2018 1 8 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: MANUEL J. MENDEZ PART 13 PATRICIA RYBNiK, INDEX NO. CORP., CYMO TRADING CORP., DAN1EL DANSO, YOUNG SOON LIM, and JOEL LIM, Defendants. The following papers, numbered 1 to _I_ 7 were read on this motion to correct an Order, or to amend the Complaint.' Complaint, and cross-motion to dismiss Complaint PAPERS NUMBERED Cross-Motion: &I VQO liivllvll ~ E]M Yes X No /5%'74 / (o Plaintiff, MOTION DATE 04/25/2018 -against. MOTION SEQ. No 004 MonoN cat. NO MW 303 Corp. d/b/a MANHATTAN WEST HOTEL Notice of Motion/ Order to Show Cause - Affidavits - EXhibits... 1-3 Answering Affldavits - Exhibits 4-S Replying Affidavits 6-7 U pon a reading of the foregoing cited papers, it is Ordered.that Plaintiff's motion to correct a defect in this Court's November 29, 2017 Preliminary Conference Order pursuant to CPLR 5019, or for leave to amend her Complaint pursuant to CPLR 3025(b), is granted to the extent that Plaintiff's Complaint is amended. Defendant Young Soon Lim's ("Y. Lim") cross-motion to dismiss Plaintiff's Complaint pursuant to CPLR 3211(a), is denied. Plaintiff was hired by Defendant Joel Lim as a front desk associate for Defendant (" Hotel" MW 303 Corp. D/b/a Manhattan West Hotel Corp. ("Hotel") in or around December 2014. Plaintiff alleges that during her employment she was subjected to a repeated pattern of sexual harassment and abuse by Defendants Y. Lim, Daniel Danso and Joel Lim. Plaintiff was eventually fired in 2016. Plaintiff commenced this action on October 14, 2016 to Defendants' recover damages for alleged violations to New York State Human Rights Laws ("NYSHRL") and New York City Human Rights Laws ("NYCHRL"). This Court's November 29, 2017 Preliminary Conference Order stipulated a discovery schedule for the parties to follow, and allowed the Plaintiff to file a motion to amend her Complaint on or before December 21, 2017 (NYCSEF Docket No.:32). The Plaintiff now moves for this Court to correct an alleged defect in the Novernber 29, 2017 Preliminary Conference Order, or in the afternative, for leave to amend her Complaint pursuant to CPLR 3025(b). The Defendants oppose the motion. Defendant Y. Lim also cross-moves to dismiss the Complaint. Plaintiff did not file opposition papers to Defendant Y. Lim's cross-motion because Defendant Y. Lim filed it's cross-motion after Plaintiff's reply papers. CPLR 5019(a) gives a court the discretion to cure mistakes, defects, and irregularities that do not affect substantial rights of parties or to amend an order or 1 of 3 3 of 5 4 of 6
FILED : NEW YORK COUNTY INDEX CLERK NO. 158679/2016 NYSCEF DOC. NO. 48 05/01/2018 04:31 PNj RECEIVED NYSCEF: 05/01/2018 NY 8 WC 586 D: EW ÎORK COUNTY CLERK 04/27/2018 10:00 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/27/2018. judgment to make it reflect what the court's holding... clearly intended" (Bd. Managers of Sea Breeze 11 Condo. v Kwiecinski, 72 AD3d 630, 898 NYS2d 461 2010]]. of [2nd Dept Plaintiff fails to submit evidence before this Court that this Court's November 29, 2017 Preliminary Conference Order contained a mistake. This Court's Preliminary Conference Order stated that "Plaintiff shall file a motion to amended complaint on or 12/21/17" before (NYCSEF Docket No.: 42). Plaintiff alleges that during this conference, the ps rties agreed that Plaintiff may simply amend her Complaint sin motion and that this Court's Order was simply improperly transcribed. However, aside from Plaintiff's affirmation, Plaintiff fails to offer any evidence to support her premise. Plaintiff's motion to correct the alleged mistake in the November 29, 2017 Preliminary Conference Order is denied. Leave to amend pleadings pursuant to CPLR 3025(b) should be freely given delay" "absent prejudice or surprise resulting directly from the (Anoun v City of New [18* York, 85 AD3d 694, 926 NYS2d 98 Dept 2011] citing Fahey v County of Ontario, 44 NY2d 934, 408 NYS2d 314, 380 NE2d 146 [1978]), "or if the proposed amendment is law" palpa ~ ~ oly improper ~ ~ or insufficient as a matter of (McGhee v Odell, 96 AD3d 449, 946 [18' NYS2d 134 Dept 2012]). A party opposing leave to amend "must overcome a heavy amendment]" presumption of validity in favor of [permitting (id). "Prejudice arises when a party incurs a change in position or is hindered in the preparation of its case or has been prevented from taking some measure in support of its position, and these problems might have been avoided had the original pleading contained the proposed amendment" ament" 1ment" [1S' amen (Valdes v Marbrose Realty, inc., 289 AD2d28,734NYS2d 24 Dept 2001]). Defendants will not suffer any prejudice when an amended complaint adds a claim premised upon the very same subject matter alleged by the original complaint [1ª* (Brown v Blennerhasset Corp., 113 AD3d 454, 979 NYS2d 27 Dept 2014]). Plaintiff's motion for leave to amend her pleadings is granted. The Defendants fail to demonstrate any surprise or prejudice. Plaintiff's Amended Complaint seeks to add additional allegations of harassment by Defendant Joel Lim, who was Plaintiff's superior, and the managerand owner of the Hotel. These new allegations derive from the original allegations of sexual harassment in Plaintiff's original Complaint Defendants cannot claim surprise to these new allegations (Brown, supra). Furthermore, Defendants cannot demonstrate prejudice since Discovery has yet to be conducted as there has been no production of documents, and depositions have not been taken. Plaintiff's motion to amend her Complaint is granted since Defendants fail to overcome their heavy burden in demonstrating surprise or prejudice. Defendant Y. Lim's cross-motion to dismiss Plaintiff's Complaint is denied. Defendant Y. Lim's counsel filed his cross-motion to oppose Plaintiff's motion and to dismiss the Complaint on February 26, 2018 (NYCSEF Docket No.: 46). Plaintiff had already submitted her Reply Papers to Defendants MW 303 Corp. d/b/a Manhattan West Hotel Corp. and Joel Lim's opposition papers on February 23, 2018 (NYCSEF Docket No.: 44). The parties never stipulated to allow Defendant Y. Lim to submit late moving papers. Defendant Y. Lim's cross-motion is denied as untimely. 2 of 3 4 of 5 5 of 6
FILED: NEW YORK COUNTY CLERK 05/01/2018 04 : 31 1NE NU.. 1360 /M 6 NYSCEF DOC. NO. 48 PIG RECEIVED NYSCEF: 05/01/2018 NY SCE F DOC. NO. 47 RECE TVE D NYSCE F : 05Z0-1..22018 F LED: NEW YORK COUNTY CLERK 4 2 18 : NYSCEF DOC. NO. 4 6. RECEIVED NYSCEF: 04/27/2018 Accordingly, It is ORDERED, that Plaintiff's motion to correct an alleged defect in this Court's November 29, 2017 Preliminary Conference Order pursuant to CPLR 5019, or for leave to amend her Complaint pursuant to CPLR 3025(b), is granted to the extent that Plaintiff's Complaint is amended, and it Is further, ORDERED, that the pleadings are amended as reflected in the proposed Amended Complaint annexed to Plaintiff's Moving Papers as Exhibit1, and it is further, ORDERED, that the pleadings as amended in the Proposed Amended Complaint annexed to Plaintiff's moving papers as Exhibit 1 shall be deemed served upon the Defendants upon service on their attorneys of a copy of this Order with Notice of Entry together with a copy of the Amended Complaint, and It is further, ORDERED, that the Defendants shall serve an Amended Answer to the Amended Complaint within thirty (30) days of service, and it Is further,. ORDERED, that Defendant Young Soon Lim's cross-motion to dismiss Plaintiff's Complaint pursuant to CPLR 3211(a), is denied, and it is further, ORDERED, that Plaintiff shall serve a copy of this Order with Notice of Entry on all parties within twenty (20) days from the date of entry of this Order, and serve a copy ' of this order with notice of entry within twenty (20) days, upon the Trial Support Clerk, in the General Clerk's Office (Room 119) and the County Clerk (Room 141B), who are directed to amend the Complaint and the court's records accordingly. ENTER: #ianuel J. Mrg;k-- 5g,;>; ~~ Dated: April 26, 2018 MAÚUEL J. ENDEZ J.S.C.. Check one: O FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: O DO NOT POST O REFERENCE 3 of 3 5 of 5 6 of 6