Doo v. Sie-En Yu

• Decision Date: 15 August 2012
• Docket Number: No. 9965/2009.,9965/2009.
• Citation: 2012 N.Y. Slip Op. 51857,37 Misc.3d 1202,961 N.Y.S.2d 357
• Parties: In the Matter of the Application of David DOO, Plaintiff, v. SIE–EN YU et al., Defendants.
• Court: New York Supreme Court

37 Misc.3d 1202

961 N.Y.S.2d 357

2012 N.Y. Slip Op. 51857

In the Matter of the Application of David DOO, Plaintiff,

v.SIE–EN YU et al., Defendants.

No. 9965/2009.

Supreme Court, Queens County, New York.

Aug. 15, 2012.

David Doo, pro se, plaintiff.

Hsu Law Associates, PLLC, by Allen Y. Hsu, Esq., New York, for defendant, John Chen.

CHARLES J. MARKEY, J.

The following papers numbered 1 to 13 read on this motion by defendant John Chen for an award of summary judgment dismissing the plaintiff's complaint and cross motion by the plaintiff for discovery and sanctions for frivolous conduct against defendant's attorney.

+----------------------------------------------------+
                ¦Papers                                   ¦Numbered  ¦
                +-----------------------------------------+----------¦
                ¦Notice of Motion–Affidavits–Exhibits     ¦1–4       ¦
                +-----------------------------------------+----------¦
                ¦Notice of Cross Motion–Affidavits–Exhibit¦5–8       ¦
                +-----------------------------------------+----------¦
                ¦Answering Affidavits–Exhibits            ¦9–11      ¦
                +-----------------------------------------+----------¦
                ¦Reply Affidavits                         ¦12–13     ¦
                +----------------------------------------------------+
                

Pro se plaintiff David Doo commenced this action against several former and current members of the board of managers of the Park Regent Condominium. This condominium premises, located at 41–25 Kissena Boulevard in Flushing, Queens County, is a mixed-use premises which includes residential, commercial and professional units, as well as a garage. The plaintiff is the owner of a unit in the subject condominium and seeks to recover damages from the defendants, individually and in their capacities as members of the condominium board, for various acts of alleged willful misconduct, fraud, and breach of their fiduciary duty as directors of the condominium from 2003 and continuing to the date of the commencement of this action. This case is one of many actions that has been commenced in a series of on-going disputes between the plaintiff and various past and present members of the subject condominium board.

A motion to dismiss the complaint on CPLR 3211 grounds was decided by an order of this court, dated March 31, 2011 (Doo v. Yu, 31 Misc.3d 1204(A), 2011 WL 1225669, 2011 N.Y. Slip Op. 50494(U) [Sup Ct Queens County 2011] [decision by the undersigned] ). As a result of that prior motion and resulting order, the only remaining claim against defendant Chen herein is the second cause of action for fraud arising out of defendant Chen and other defendants' alleged ongoing misuse of condominium parking areas to operate their own parking company and build an 800–square foot video rental store on the premises for personal gain from 2003 to date.

Defendant John Chen seeks summary judgment dismissing the plaintiff's complaint against him on the grounds that:

(1) the plaintiff can bring a derivative claim only if the board rejected a request that it take the action the plaintiff is pursuing or can demonstrate that such a demand would be futile;

(2) the plaintiff brings a derivative action and improperly mixes personal claims with derivative claims; and

(3) the plaintiff's claims are barred by res judicata and collateral estoppel in that the plaintiff brought a prior action against him and the other defendants seeking damages for breach of fiduciary duty which were previously dismissed by Justice Howard Lane in a prior action bearing Queens County Index Number 5268/08.

Defendant John Chen's request for summary dismissal of the complaint against him on the ground that the plaintiff may not assert a derivative claim herein is denied. Defendant John Chen has failed to make a prima facie showing that the defendant did not reject the plaintiff's request to take the actions the plaintiff is pursuing herein or that such request would not have been futile inasmuch as he fails to submit any evidence to support such contention ( see, Alvarez v. Prospect Hospital, 65 N.Y.2d 230 [1986] ).

Defendant John Chen has also failed to make a prima facie showing that the plaintiff improperly combined individual and derivative claims in the second cause of action asserted against him. The New York Court of Appeals has held that...