Oi Tai Chan v. Soc'y of Shaolin Temple, Inc.

• Decision Date: 03 November 2010
• Citation: 910 N.Y.S.2d 872,30 Misc.3d 244
• Parties: OI TAI CHAN, Plaintiff, v. The SOCIETY OF SHAOLIN TEMPLE, INC., et al., Defendants.
• Court: New York Supreme Court

910 N.Y.S.2d 872

30 Misc.3d 244

OI TAI CHAN, Plaintiff,

v.The SOCIETY OF SHAOLIN TEMPLE, INC., et al., Defendants.

Supreme Court, Queens County, New York.

Nov. 3, 2010.

Dai & Associates, P.C., by John J. O'Connell and Xiaolan Lan, Esqs., Flushing, for the Plaintiff.

Kenneth W. Jiang, Esq., New York, for the Defendant Guolin Shi.

Manning & Associates, by Thomas A. Manning, Esq., New York, for the Defendant The Society of Shaolin Temple.

CHARLES J. MARKEY, J.

In this vigorously fought and acrimonious litigation, where a plaintiff alleges that she was the victim of a major fraud perpetrated by a religious organization and its leader, the Court has conducted numerous conferences. The Court's purpose has been to guide the litigation to an orderly resolution or conclusion. Yet, the experience of this litigation has shown that the Court's directives on discovery have been flouted. Now, among the interesting issues to be decided is whether counsel for one of the defendants violated a prior direction by the Court forbidding counsel from instructing his client not to answer a question at the examination before trial. Also, at issue is whether a cross motion by one of the defendants seeking to disqualify plaintiff's counsel has any legitimate merit where a lawyer in plaintiff's law firm drafted a will for the plaintiff leaving most of plaintiff's estate to the defendant Temple and whether the three year delay in filing the cross motion seeking the disqualification of plaintiff's counsel, made at the eve of trial, provides independent grounds for its denial.

Plaintiff in this breach of contract/fraudulent inducement action seeks damages for monies which she gave to defendants. Plaintiff was a member of defendant The Society of Shaolin Temple, Inc. ("the Temple"), a place of Buddhist worship at 132-11 41st Avenue, in Flushing, Queens County, New York. Co-defendant Guolin Shi ("Shi") was the president of the Temple at all relevant times.

In the complaint, dated April 26, 2007, the plaintiff alleges that she was defrauded of large sums of money by defendant Shi and members of the Temple. Defendant Shi's verified answer is dated June 28, 2007. On November 25, 2009, defendant Shi's counsel, Kenneth Jiang, Esq., filed a motion for summary judgment. The Court adjourned the motion, pointing out the futility of seeking summary judgment at a pre-deposition stage in light of the many disputed factual issues. Since counsel for the parties could not agree civilly to a discovery schedule, the Court and the undersigned's Principal Law Clerk, Howard L. Wieder, Esq., spent numerous hours at conferences working out a discovery schedule and attempting to resolve otherdisputes. On March 25, 2010, an extensive record was made in open Court, with the Court's direction forbidding counsel from instructing their clients not to answer questions and preserving all objections at trial.

Shi, as noted, moved for summary judgment to dismiss the complaint and all cross claims on the ground that the monies given were donations by plaintiff to the Temple and that plaintiff cannot establish otherwise. Plaintiff's cross motion is to resume the examination before trial of Shi and for the witness, defendant Shi, to listen to an audio recording of an alleged telephone conversation between plaintiff and Shi and answer questions regarding it, in particular the identity of persons speaking on therecording. The cross motion centers on the propriety of Mr. Jiang directing his client, defendant Shi, not to answer questions regarding the tape recording, notwithstanding the Court's direction on March 25, 2010, forbidding such instructions. Defendant Shi opposes the cross motion and cross-moves to disqualify plaintiff's attorney from continued representation of the plaintiff, pursuant to Rule 3.7 of the Rules of Professional Conduct.

The case had actually first appeared on the calendar of the Trial Assignment Part on March 18, 2010 and was adjourned to May 20, 2010 and then to August 25, 2010. Finally, on August 30, 2010, the case was assigned to trial to the Honorable James Golia, J.S.C., for trial. Justice Golia has deferred the trial until motions pending before the undersigned were decided.

The Facts

Plaintiff testified that defendant Shi, her spiritual leader, pressured her into giving significant sums of money, indeed, hundreds of thousands of dollars, to the co-defendant Temple. According to plaintiff, defendant Shi falsely and misleadingly told plaintiff that the money would be used to help finance a condominium project at the Temple site, and that in return for advancing the money, plaintiff would be given a sizable discount on the price of a penthouse apartment. When the project never materialized, plaintiff asked for her money back, but Shi refused.

Shi testified to the contrary. In substance, Shi testified that the project was for construction of a rental apartment; and that plaintiff's payments to the Temple were voluntary contributions, not a quid pro quo for a condominium unit. Notably, there is no documentary evidence that there was ever any such project at all, rental or condominium.

The affidavit of plaintiff's customer service representative at her bank, Sungho Kang, was also submitted. Kang avers that he had several conversations with plaintiff and Shi at the bank where plaintiff often went to withdraw the subject monies, and that the subject of the conversations was that plaintiff was getting a condominium unit at a reduced price. Shi admits to speaking with Kang, but claims not to remember the substance of their conversation.

Motion for Summary Judgment by Shi

It is well settled, that the proponent on a motion for summary judgment has the initial burden to affirmatively demonstrate their prima facie entitlement to judgment as a matter of law ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). The moving party must tender sufficient admissible evidence to demonstrate as a matter of law the absence of a material issue of fact. Failure to make that initial showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. New York University Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642, supra; Cendant Car Rental Group v. Liberty Mutual Ins. Co., 48 A.D.3d 397, 852 N.Y.S.2d 190 [2nd Dept.2008]; Martinez v. 123-16 Liberty Avenue Realty Corp., 47 A.D.3d 901, 850 N.Y.S.2d 201 [2nd Dept.2008]; St. Luke's-Roosevelt Hosp. v. American Tr. Ins. Co., 274 A.D.2d 511, 712 N.Y.S.2d 372 [2nd Dept.2000]; Greenberg v. Manlon Realty, Inc., 43 A.D.2d 968, 352 N.Y.S.2d 494 [2nd Dept.1974] ).

Here, upon the foregoing papers, in moving for summary judgment Shi merely contends that plaintiff cannot establish a prima facie case. A proponent's burden, however, is not met by pointing out the gaps in the opponent's proof ( see, Calderone v. Town of Cortlandt, 15 A.D.3d 602, 790 N.Y.S.2d 687 [2nd Dept.2005]; Doe v. Orange-Ulster Bd. of Co-op. Educational Services, 4 A.D.3d 387, 771 N.Y.S.2d 389 [2nd Dept.2004]; Fromme v. Lamour, 292 A.D.2d 417, 738 N.Y.S.2d 863 [2nd Dept.2002] ). On a motion for summary judgment where the proponent has not affirmatively made out a prima facie case, the party opposing the motion is not required to assemble, lay bare and reveal her proof and show that her claims are capable of being established at trial ( see, Scott v. Long Island Power Auth., 294 A.D.2d 348, 741 N.Y.S.2d 708 [2nd Dept.2001]; Spearmon v. Times Square Stores Corp., 96 A.D.2d 552, 465 N.Y.S.2d 230 [2nd Dept.1983] ).

In any event, the conflicting testimony as to the purpose of the monies given raises issues of fact and credibility which cannot be resolved on a motion for summary judgment ( see, Medina v. 203 West 109th Street Realty Corp., 16 A.D.3d 220, 790 N.Y.S.2d 663 [1st Dept.2005] ).Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue ( Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068 [1978] ). In reviewing a motion for summary judgment, the court must accept as true the evidence presented by the nonmoving party and must deny the motion if there is "even arguably any doubt as to the existence of a triable issue" ( Baker v. Briarcliff School Dist., 205 A.D.2d 652, 613 N.Y.S.2d 660 [2nd Dept.1994] ).

Since Shi's motion merely asserts that he is moving to dismiss under Article 32, without specifying which provision of the statute, the court will briefly note that the action is also not amenable to dismissal under CPLR 3211(a)(7). Plaintiff's claim against Shi is for fraudulent inducement. Specifically, it is alleged that Shi induced plaintiff to give the Temple $240,000 by promising plaintiff that she would be able to purchase, at a discount, a penthouse apartment in the condominium project allegedly to be built on the Temple site. Plaintiff contends that Shi knew at that time that there was no such project.

To state a cause of action for fraudulent inducement, it is sufficient that the claim alleges a material representation, known to be false, made with the intention of inducing reliance, upon which the victim actually relies, consequentially sustaining a detriment ( Channel Master Corp. v. Aluminium Ltd. Sales, 4 N.Y.2d 403, 176 N.Y.S.2d 259, 151 N.E.2d 833 [1958]; Megaris Furs v. Gimbel Bros., 172 A.D.2d 209, 568 N.Y.S.2d 581 [1st Dept.1991] ). "An expression or prediction as to some future event, known by the author to be false or made despite the anticipation that the event will not occur, is deemed a statement of a material existing fact, sufficient to support a fraud action' " ( Cristallina S.A. v. Christie, Manson & Woods Intl., 117 A.D.2d 284, 294-295, 502 N.Y.S.2d 165 [1st Dept.1986], quoting Channel Master Corp., supra at 407, 176 N.Y.S.2d 259, 151 N.E.2d 833). The Court...