Trueforge Global Mach., Corp. v. Viraj Grp.

• Decision Date: 14 December 2009
• Docket Number: No. 1846/08.,1846/08.
• Parties: TRUEFORGE GLOBAL MACHINERY, CORP., Plaintiff, v. VIRAJ GROUP a joint venture and/or association of corporations and other business entities consisting of Viraj USA Inc., Viraj Impoexpo Ltd, Viraj Forgings Ltd, Viraj Profiles Ltd, Viraj Alloys Ltd, VSL Wires Ltd. and other business entities, not presently known, and identified herein as John Doe 1 through 10, Defendants.
• Court: New York Supreme Court

35 Misc.3d 1214

951 N.Y.S.2d 84

2009 N.Y. Slip Op. 52833

TRUEFORGE GLOBAL MACHINERY, CORP., Plaintiff,

v.VIRAJ GROUP a joint venture and/or association of corporations and other business entities consisting of Viraj USA Inc., Viraj Impoexpo Ltd, Viraj Forgings Ltd, Viraj Profiles Ltd, Viraj Alloys Ltd, VSL Wires Ltd. and other business entities, not presently known, and identified herein as John Doe 1 through 10, Defendants.

No. 1846/08.

Supreme Court, Nassau County, New York.

Dec. 14, 2009.

OPINION TEXT STARTS HEREAntonio I. Brandveen, J.

The plaintiff moves for an order to compel the defendants to produce Neeraj Kochhar for deposition. The plaintiff's attorney states, in an affirmation dated July 20, 2009, the defense presented a witness for deposition who had virtually no knowledge of the facts of the underlying action. The plaintiff's attorney points out Kochhar is the principal of the defendant business entities, and a necessary and material witness with respect to a deposition. The plaintiff's attorney points to the affidavit dated July16, 2209, by president of the corporate plaintiff, in support of the plaintiff position for compelling the production of Neeraj Kochhar for deposition. The defense opposes the plaintiff's motion. The defense counsel states, in an affirmation dated August 27, 2009, the alleged written agreement is unenforceable because the October 25–26, 2005 exchange of email between the parties' principals are insufficient to satisfy the requirements of the Statute of Frauds. The defense counsel states any parol evidence, including deposition testimony by Kochhar is irrelevant to this litigation. The defense counsel asserts the plaintiff's motion is meant to harass, annoy and prejudice the defense.

The plaintiff's attorney reiterates, in a reply affirmation dated September 10, 2009, the defense presented a witness for deposition who had virtually no knowledge of the facts of the underlying action. The plaintiff's attorney points out Kochhar is the principal of the defendant business entities, and a necessary and material witness with respect to a deposition. The plaintiff's attorney maintains Kochhar's deposition is not harassment. The plaintiff's attorney contends the Statute of Frauds is not a bar to the action.

The defense cross moves for summary judgment on the ground the plaintiff's alleged agreement that the defendants would pay the plaintiff a “finders fee” is unenforceable since it fails to satisfy the requirements of the Statute of Frauds, under General Obligation Law § 5–701(a)(10). The defense attorney states, in an affirmation dated August 27, 2009, the defense presented an accountant, who testified at the deposition. The defense attorney asserts the finders fee must be set forth in a writing or there must be a written objective means to determine the finders fee.

The plaintiff's attorney points, in an affirmation dated September 10, 2009, to the affidavit dated September 9, 2009, of the president of the corporate plaintiff, and the plaintiff's September 10, 2009 memorandum of law, and states there are numerous questions of fact in the underlying action. The plaintiff's attorney asserts the defense refusal to provide relevant documents which the defense controls or to produce an individual with knowledge of the facts prohibits summary judgment. The plaintiff's attorney avers the Statute of Frauds is not a substantive defense. The plaintiff's attorney maintains basic principles of equity prevent the defense from utilizing the Statute of Frauds as a defense. The plaintiff's attorney contends there are issues of fact which prevent granting summary judgment.

The defense attorney states, in an affirmation dated September 17, 2009, the plaintiff's opposition to summary judgment...