AQ Asset Mgmt. LLC v. Levine

• Decision Date: 28 May 2015
• Docket Number: 652367/10-15268, 15267, 15266, 15265, 15264, 15263
• Citation: 2015 N.Y. Slip Op. 04572,128 A.D.3d 620,13 N.Y.S.3d 1
• Parties: AQ ASSET MANAGEMENT LLC (as successor to Artist House Holdings Inc.), et al., Plaintiffs–Respondents, v. Michael LEVINE, Defendant–Respondent, Habsburg Holdings Ltd., et al., Defendants–Appellants. Kerry Gotlib, Nonparty Appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 620

13 N.Y.S.3d 1

2015 N.Y. Slip Op. 04572

AQ ASSET MANAGEMENT LLC (as successor to Artist House Holdings Inc.), et al., Plaintiffs–Respondents

v. Michael LEVINE, Defendant–RespondentHabsburg Holdings Ltd., et al., Defendants–Appellants.Kerry Gotlib, Nonparty Appellant.

652367/10-15268, 15267, 15266, 15265, 15264, 15263

Supreme Court, Appellate Division, First Department, New York.

May 28, 2015.

Law Offices of Michael A. Haskel, Mineola (Michael A. Haskel of counsel), for appellants.

Reitler Kailas & Rosenblatt, New York (Edward P. Grosz of counsel), for AQ Asset Management, LLC, Antiquorum, S.A., Antiquorum USA, Inc. and Evan Zimmermann, respondents.

Levine & Associates, Scarsdale (Michael Levine of counsel), for Michael Levine, respondent.

ANDRIAS, J.P., MOSKOWITZ, DeGRASSE, GISCHE, KAPNICK, JJ.

Opinion

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered February 5, 2014, which denied defendants Habsburg Holdings Ltd. and Osvaldo Patrizzi's motion for partial summary judgment on their eighth counterclaim and for preclusion of plaintiffs' defenses thereto, unanimously affirmed, with costs. Order, same court and Justice, entered May 1, 2014, which sua sponte sanctioned defendants Hapsburg Holdings Ltd. and Osvaldo Patrizzi for bringing the motion for partial summary judgment, unanimously affirmed, without costs. Order, same court and Justice, entered June 24, 2014, which denied said defendants' motion to renew defendant Michael Levine's motion to dismiss their legal malpractice cross claims, to find plaintiffs in contempt of court, for sanctions against attorneys Levine and plaintiff Zimmerman for their conduct in a nonparty deposition, and for an anti-suit injunction barring Levine and Zimmerman from the Swiss litigation, unanimously affirmed, without costs. Order, same court and Justice, entered November 13, 2014, which, to the extent appealed from as limited by the briefs, denied defendants Hapsburg Holdings Ltd. and Osvaldo Patrizzi's motion to amend their answer to include a counterclaim for a constructive trust against plaintiffs Antiquorum S.A. and Zimmerman, unanimously reversed, on the law, without costs, and the motion granted. Order, same court and Justice, entered April 28, 2014, which sua sponte imposed a $5,000 sanction on defense counsel nonparty appellant Kerry Gotlib for improperly filing documents under seal, unanimously affirmed, without costs. Order, same court and Justice, entered May 23, 2014, which, inter alia, denied defendants Hapsburg Holdings Ltd. and Osvaldo Patrizzi's motion for recusal, unanimously affirmed, without costs.

Defendants Hapsburg Holdings Ltd. and Patrizzi's (defendants) motion for partial summary judgment depended on defendants' ability to establish precisely the inventory that had been on hand before the parties entered into the stock purchase agreement (SPA). Defendants offered only an unsworn email list, which none of their affiants authenticated or stated was accurate, and which was therefore inadmissable hearsay (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Nor did plaintiffs' references to the document in opposition to various motions constitute an admission of its accuracy. The claims for a constructive trust and money had and received were barred by the SPA, an express contract covering the same subject matter (Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ). Further, the motion was filed before plaintiffs' response to the amended answer and counterclaims and thus was untimely (City of Rochester v. Chiarella, 65 N.Y.2d 92, 101, 490 N.Y.S.2d 174, 479 N.E.2d 810 [1985] ).

Given the absence of any admissible evidence to support the motion, the motion court properly sanctioned defendants for bringing a frivolous motion.

The court properly refused to preclude plaintiffs from defending against the eighth counterclaim for failure to produce certain inventory records. The court was managing discovery closely, and plaintiffs were making a rolling production at the time of the motion to preclude (see generally Auerbach v. Klein, 30 A.D.3d 451, 452, 816 N.Y.S.2d 376 [2nd Dept.2006] ).

The court correctly denied renewal of Levine's motion to dismiss the legal malpractice...