Ngo v. Ngo, Index No. 154173/2016

• Decision Date: 21 September 2018
• Docket Number: Index No. 154173/2016
• Citation: 2018 NY Slip Op 32379 (U)
• Parties: CHI HUNG NGO, Plaintiff v. CHI VY NGO a/k/a CHIVY NGO, NEW ANGLE REALTY CORP., and 69 CLINTON NPG, LLC, Defendants
• Court: New York Supreme Court

2018 NY Slip Op 32379(U)

CHI HUNG NGO, Plaintiff
v.
CHI VY NGO a/k/a CHIVY NGO, NEW ANGLE REALTY CORP., and 69 CLINTON NPG, LLC, Defendants

Index No. 154173/2016

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: September 25, 2018
September 21, 2018

NYSCEF DOC. NO. 203

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. PROCEDURAL BACKGROUND

Defendants Chi Vy Ngo and New Angle Realty Corp., the two remaining defendants, move to vacate the note of issue served by plaintiff June 5, 2018, and to compel his production of documents previously requested by defendants. C.P.L.R. § 3124; 22 N.Y.C.R.R. § 202.21(e). They requested the documents sought in demands to plaintiff dated August 31, 2016, August 8, 2017, and January 8, 2018. In August 2016 defendants requested invoices and receipts for any renovations plaintiff made to New Bo Ky Restaurant, 80 Bayard Street, New York County, since 2012 and a list of the persons used to perform those renovations. In August 2017 defendants specifically requested "a verified statement setting forth the address of HONG KONG CONSTRUCTION COMPANY, listed as the contractor who performed the renovations for plaintiff." Aff. in Supp. of Joseph C. Cacciato Ex. D, at 1. In January 2018 defendants requested documents showing New Bo Ky Restaurant's gross and net annual profits since 2008 and the tax

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returns filed for the restaurant since 2008.

II. THE NEED FOR PRODUCTION OF OUTSTANDING DISCLOSURE

Defendants allege an offset against plaintiff's claims and a counterclaim for funds that plaintiff owed to defendant Ngo: "a significant amount of money for fraudulently stealing the majority ownership of another company they were involved with together," New Bo Ky Restaurant, not defendant New Angle Realty. V. Answer at 4. While that claimed obligation does not bear on the validity of plaintiff's interest in defendant corporation, a counterclaim may encompass any claim by either defendant against plaintiff, C.P.L.R. § 3019(a), "even if such claims do not arise out of the transaction or Occurrence from which the plaintiff's claim arises." Crawford v. Burkey, 93 A.D.3d 1134, 1135 (3d Dep't 2012). See Matter of Eshaghian, 144 A.D.3d 1154, 1155 (2d Dep't 2016); Reszka v. Collins, 136 A.D.3d 1299, 1300 (4th Dep't 2016). Therefore plaintiff's expenditures for and the value of renovations to the restaurant, witnesses to those facts, and the restaurant's income and profits before and since the time that defendant Ngo alleges plaintiff committed his fraud and misappropriation or conversion of defendant Ngo's ownership interest in the restaurant are relevant to his offset and counterclaim. C.P.L.R. § 3101(a); Forman v. Henkin, 30 N.Y.3d 656, 661 (2018); SNI/SI Networks LLC v. DIRECTV, LLC, 132 A.D.3d 616, 617 (1st Dep't 2015); Matter of Steam Pipe Explosion at 41st St. & Lexington Ave., 127 A.D.3d 554, 555 (1st Dep't 2015)....