Oink Ink Radio, Inc. v. One Destiny Prods., Inc.

• Jurisdiction: New York,United States
• Citation: Oink Ink Radio, Inc. v. One Destiny Prods., Inc., 199 N.Y.S.3d 373 (N.Y. Sup. Ct. 2023)
• Decision Date: 29 June 2023
• Parties: OINK INK RADIO, INC., and W. Daniel Price, Plaintiffs v. ONE DESTINY PRODUCTIONS, INC. d/b/a Creative Media Design, and Michael Zirinsky, Defendants
• Court: New York Supreme Court
• Docket Number: Index No. 650021/2016

199 N.Y.S.3d 373

OINK INK RADIO, INC., and W. Daniel Price, Plaintiffs

v.ONE DESTINY PRODUCTIONS, INC. d/b/a Creative Media Design, and Michael Zirinsky, Defendants

Index No. 650021/2016

Supreme Court, New York County, New York.

Decided on June 29, 2023

For Plaintiffs, Brian S. KimmelEsq., 305 Broadway, New York, NY 10007

For Defendants, Jennifer Ettenger Esq. and Mark B. StumerEsq., 306 5th Avenue, New York, NY 10001

Lucy Billings, J.

I.BACKGROUND

The parties’ dispute relates to an agreement for defendantOne Destiny Productions, Inc., doing business as Creative Media Design, to sublet an office on the 12th floor of 37 West 37th Street to plaintiffOink Ink Radio, Inc., for a recording studio.The entities signed a sublease, but Oink Ink Radio never received possession of the premises.Oink Ink Radio and its President, plaintiff Price, sue Creative Media Design and its Chief Executive Officer, defendant Zirinsky.Plaintiffs allege defendants’ breach of the sublease in three separate claims, misrepresentation and fraud, unjust enrichment, in that defendants sublet the premises to another tenant for more rent and profited unjustly at plaintiffs’ expense, and Zirinsky's defamation of Price and seek punitive damages and attorneys’ fees as well as compensatory damages.Defendants counterclaim for fraudulent and negligent misrepresentation against Price, for breach of contract against both plaintiffs in three separate claims, and for indemnification under the sublease against Oink Ink Radio and under a guaranty against Price.

Defendants now move for summary judgment dismissing all claims in the amended complaint and on plaintiffs’ liability for defendants’ first, third, fourth, sixth, and seventh counterclaims.C.P.L.R. § 3212(b).Plaintiffs cross-move for summary judgment on defendants’ liability for plaintiffs’ claims.Id.

II.PROCEDURAL DEFECTS

A.Defendants’ Statement of Undisputed Material Facts

Plaintiffs ask the court to deny defendants’ motion because defendants did not timely submit timely statement of undisputed material facts as required by 22 N.Y.C.R.R. § 202.8-g.According to defendants, the omission was a filing error, which they corrected March 10, 2022, as soon as they discovered it and before the return date for the motion March 25, 2022.NYSCEF Doc. 174.Plaintiffs raise no other issue regarding the document, nor seek to respond to the statement.Since plaintiffs identify no prejudice from the delay in filing, the court overlooks this minor defect.C.P.L.R. §§ 2001and2101(f).In fact the rule subsequently was amended to apply only if the court so directs.

B. Zirinsky's Affidavit

Plaintiffs also ask the court to disregard Zirinsky's affidavit sworn outside New York without a certificate of conformity as required by C.P.L.R. § 2309(c).That statute gives "an oath or affirmation taken without the state" the same effect as an oath taken within the state if the oath includes a certification of the type required to record a deed in New York that was acknowledged outside New York.NY Real Prop. Law § 309—b(1) and (2).Defendants contend that the Zirinsky affidavit's acknowledgment is an acceptable certificate of conformity, substantially similar to the requirements for a deed.Id.The Zirinsky affidavit's notary acknowledged that on December 16, 2021, Zirinsky, "personally known to me or proved to me on the basis of satisfactory evidence to be the individual described in and who executed the foregoing affidavit, and acknowledged that (s)he executed the same."Aff. of Michael Zirinsky, NYSCEF Doc. 127, at 6.

New York Real Property Law (RPL)§ 309—b(1) provides a sample satisfactory certificate:

On the _____ day of _____ in the year _____ before me, the undersigned, personally appeared _____, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/ they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

(Signature and office of individual taking acknowledgment.)

The Zirinsky affidavit's certificate is sufficiently close to the sample certificate that the court considers the affidavit to include the required certificate of conformity and accepts the affidavit in support of defendants’ motion.

C.Price's Deposition

Finally, plaintiffs insist that defendants may not rely on Price's deposition because they never forwarded the deposition transcript to plaintiffs for his review, correction, and signature.C.P.L.R. § 3116(a).Plaintiffs never explain why they failed to raise their nonreceipt of the transcript to defendants, whose attorney attests that he mailed it to plaintiffs’ attorney and, having received no changes, assumed defendants were entitled to rely on the unchanged testimony.Id.Nor do plaintiffs identify what corrections Price would have made or suggest that he denies any part of his testimony on which defendants rely.In fact, as demonstrated below, while plaintiffs rely on Price's deposition, defendants’ use of his deposition is inessential to their motion and opposition to plaintiffs’ cross-motion.Therefore the court permits both sides’ use of Price's deposition.Singh v. New York City Hous. Auth. , 177 A.D.3d 475, 475, 112 N.Y.S.3d 63(1st Dep't2019);Tsai Chung Chao v. Chao , 161 A.D.3d 564, 564, 78 N.Y.S.3d 297(1st Dep't2018);Shackman v. 400 E. 85th St. Realty Corp. , 161 A.D.3d 438, 438, 77 N.Y.S.3d 13(1st Dep't2018).

D.Plaintiffs’ Excessive Cross-Motion

Defendants in turn point out that both plaintiffs’ memorandum of law and their attorney's affirmation in opposition to defendants’ motion and in support of plaintiffs’ cross-motion violate 22 N.Y.C.R.R. § 202.8-b because each exceeds the word count limit.Both are extraordinarily repetitive and thus unnecessarily excessive: precisely what the word count limits are intended to prevent.Only after defendants responded did plaintiffsrequest permission to file the oversize documents.At that point, plaintiffs already had prejudiced defendants by requiring them to respond to the excessive cross-motion.Had plaintiffs eliminated all their repetition, they likely would have complied with the work count limits.Therefore, while the court does not condone plaintiffs’ noncompliance, since defendants already responded, the court considers each of plaintiffs’ points, whether made once or multiple times, as well as defendants’ response.

III.SUMMARY JUDGMENT STANDARDS

To obtain summary judgment, the moving parties must make a prima facie showing of entitlement to judgment as a matter of law through admissible evidence eliminating all material factual issues.C.P.L.R. § 3212(b);Bill Birds, Inc. v. Stein Law Firm, P.C. , 35 N.Y.3d 173, 179, 126 N.Y.S.3d 50, 149 N.E.3d 888(2020);Friends of Thayer Lake LLC v. Brown , 27 N.Y.3d 1039, 1043, 33 N.Y.S.3d 853, 53 N.E.3d 730(2016);Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP , 26 N.Y.3d 40, 49, 19 N.Y.S.3d 488, 41 N.E.3d 353(2015);Voss v. Netherlands Ins. Co. , 22 N.Y.3d 728, 734, 985 N.Y.S.2d 448, 8 N.E.3d 823(2014) If the moving parties fail to make this evidentiary showing, the court must deny the motion.Voss v. Netherlands Ins. Co. , 22 N.Y.3d at 734, 985 N.Y.S.2d 448, 8 N.E.3d 823;William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh , 22 N.Y.3d 470, 475, 982 N.Y.S.2d 813, 5 N.E.3d 976(2013);Vega v. Restani Constr. Corp. , 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240(2012);Dorador v. Trump Palace Condo. , 190 A.D.3d 479, 481, 140 N.Y.S.3d 493(1st Dep't2021).Only if the moving parties meet this initial burden, does the burden shift to the non-moving parties to rebut that prima facie showing by producing admissible evidence sufficient to require a trial of material factual issues.Bill Birds, Inc. v. Stein Law Firm, P.C. , 35 N.Y.3d at 179, 126 N.Y.S.3d 50, 149 N.E.3d 888;De Lourdes Torres v. Jones , 26 N.Y.3d 742, 763, 27 N.Y.S.3d 468, 47 N.E.3d 747(2016);Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP , 26 N.Y.3d at 49, 19 N.Y.S.3d 488, 41 N.E.3d 353;Morales v. D & A Food Serv. , 10 N.Y.3d 911, 913, 862 N.Y.S.2d 449, 892 N.E.2d 842(2008).In evaluating the evidence for purposes of a summary judgment motion, the court construes the evidence in the light most favorable to the non-moving parties.Stonehill Capital Mgt. LLC v. Bank of the W. , 28 N.Y.3d 439, 448, 45 N.Y.S.3d 864, 68 N.E.3d 683(2016);De Lourdes Torres v. Jones , 26 N.Y.3d at 763, 27 N.Y.S.3d 468, 47 N.E.3d 747;William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh , 22 N.Y.3d at 475, 982 N.Y.S.2d 813, 5 N.E.3d 976;Vega v. Restani Constr. Corp. , 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240.

IV.BREACH OF CONTRACT CLAIMS

(First, Fifth, and Eighth Claims and Third and Fourth Counterclaims)

Although plaintiffs refer to their amended complaint's first, fifth, and eighth claims as distinct breach of contract claims, they are merely different components of one claim.Plaintiffs’ first claim alleges that defendants breached the sublease by failing to deliver possession of the leased premises to plaintiffs.Their fifth claim alleges that Creative Media Design negligently, recklessly, and intentionally breached the sublease by failing to supervise the corporation's officers or employees.Plaintiffs’ eighth claim alleges their damages from defendants’ breach: expenses preparing the premises for plaintiffs’ occupancy and use, their lost opportunity to use that space or to find alternate space, and the cost of their eventual alternate space.

To establish breach of a contract, a party must demonstrate a contract, that party's performance, another party's breach, and damages from the breach.Alloy Advisory, LLC v. 503 W. 33rd St. Assocs., Inc....