Opinion
Index No. 652669/2012 Motion Seq. Nos. 002 009
03-29-2023
BGC PARTNERS, INC. G&E ACQUISITION COMPANY, LLC, Plaintiff, v. AVISON YOUNG (CANADA), INC., AVISON YOUNG (USA), INC., AVISON YOUNG - NEW YORK, LLC, AVISON YOUNG - NEVADA, LLC, AVISON YOUNG - WASHINGTON, D.C., LLC.AVISON YOUNG - CHICAGO, LLC, AVISON YOUNG -NEW ENGLAND, LLC, AVISON YOUNG - ATLANTA, LLC, AVISON YOUNG - SOUTHERN CALIFORNIA, LTD., AVISON YOUNG - PITTSBURGH, LTD., AVISON YOUNG -TEXAS, LLC Defendant.
Unpublished Opinion
MOTION DATE 10/30/2019, 03/25/2014.
PRESENT: HON. MELISSA A. CRANE, Justice.
SUPPLEMENTAL DECISION + ORDER AMENDING MOTIONS 02 & 09
MELISSA A. CRANE, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 32, 34, 40, 48, 52, 53, 86, 87, 93, 94 were read on this motion to/for DISMISS.
The following e-filed documents, listed by NYSCEF document number (Motion 009) 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 318, 319,320,340,341,342,344,348,349,350 were read on this motion to/for LEAVE TO FILE.
This case was over a long time ago. The plaintiffs' pleadings in this case have been dismissed, and this case has been disposed, numerous times. Plaintiffs have also taken countless appeals and now, by letter filed on 3/28/23, plaintiffs ask this court to sign a proposed "final" judgment so that they can pursue yet more appeals.
Briefly, this court (Friedman, J.) granted in part defendants' motion to dismiss the amended complaint in July 2016 (see Doc 86 [resolving MS 02]). hi December 2017, the First Department modified the July 2016 decision and order to also dismiss plaintiffs' theft of trade secrets cause of action (BCG Partners, Inc. v Avison Young (Can.) Inc., 156 A.D.3d 531, 531 [1st Dept 2017], order recalled and vacated sub nom. BGC Partners, Inc. v Avison Young (Can.) Inc., 160 A.D.3d 407 [1st Dept 2018]). However, in April 2018, the First Department recalled and vacated its December 2017 decision and order and entered a new decision order that modified Judge Friedman's July 2016 decision and order by dismissing all of plaintiffs' causes of action in the amended complaint (including, the claims for theft of trade secrets, aiding and abetting breach of the duty of fidelity, and injunctive relief) (BGC Partners, Inc. v Avison Young (Can.) Inc., 160 A.D.3d 407 [1st Dept 2018]). Thus, the amended complaint was dismissed as a result of the First Department's April 2018 decision and order.
Between the First Department's December 2017 and April 2018 rulings, plaintiffs filed a motion for leave to serve another amended complaint [MS 06]. In March 2018, this court (Friedman, J.), "assuming] for the purposes of [MS 06] that The Appellate Division's [December 2017] decision . .. dismissed the trade secrets claims without prejudice," granted MS 06 in part "solely to the extent of granting leave to replead the aiding and abetting [breach of loyalty] cause of action (see Doc 244 at 30-32 [March 2018 decision and order resolving MS 06 and annexed tr. of oral argument]).
The next month, the First Department issued the April 2018 decision and order that recalled and vacated its December 2017 decision and order and dismissed plaintiffs' amended complaint. Plaintiffs then moved this court, in MS 09, for leave to file a second amended complaint. In its January 2020 decision and order, this court (Friedman, J.) again "assume[d] for the purposes of [MS 09] that [the First Department's April 2018 dismissal of all causes of action] . . . was without prejudice" (Doc 342 at 3 [tr. of oral argument for MS 09]). Nevertheless, Judge Friedman denied plaintiffs' motion for leave to amend (id.; Doc 344 [January 2020 decision and order denying MS 09]).
Plaintiffs appealed this court's January 2020 decision and order. The First Department, in its March 2021 order, affirmed this court's denial of the motion for leave to amend but modified, on the law, to clarify that the Appellate Division's April 2018 decision and order dismissed the claims with prejudice, not without (BGC Partners, Inc. v Avison Young (Can.), Inc., 192 A.D.3d 498 [1st Dept 2021 ], Iv to appeal dismissed 37 N.Y.3d 1226 [2022], and h to appeal dismissed 39 N.Y.3d 933 [2022], rearg denied 39 N.Y.3d 1063 [2023]). The First Department explained:
"We affirm the denial of plaintiffs' motion for leave to file a second amended complaint. By the time plaintiffs moved for leave to amend, we had already dismissed all the remaining claims in the amended complaint, and directed the court to enter judgment accordingly; 'hence, there was no complaint left before the court to amend' "(id., quoting Tanner v Stack, 176 A.D.3d 429 [1st Dept 2019] [internal quotation marks omitted]).
Thus, the First Department made it clear that MS 02 [the original motion to dismiss the amended complaint] was granted in its entirety, and the complaint was dismissed with prejudice. This court's January 2020 decision and order denying MS 09 [plaintiffs' motion for leave to file a second amended complaint] was modified only to the extent that the January 2020 decision and order did not state the prior dismissals were with prejudice. This case, at the trial level at least, was over at that point.
Plaintiffs then sought leave to appeal the First Department's March 2021 decision and order to the Court of Appeals. Around the same time, plaintiffs filed a motion to renew their motion for leave to file a second amended complaint (MS 13) (see Doc 354). This court (Crane, J.) denied the motion and marked the case disposed (Doc 442 [June 2021 decision and order denying MS 13]).
Plaintiffs' first attempt to appeal the First Departments March 2021 decision and order was unsuccessful. The Court of Appeals dismissed leave to appeal from that order (BGC Partners, Inc. v Avison Young (Can.), Inc., 37 N.Y.3d 1226 [2022] ["Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution."]).
Plaintiffs also appealed this court's June 2021 decision and order denying MS 13. In its May 2022 decision and order, the First Department unanimously affirmed, stating:
"The court properly denied plaintiffs' motion to renew their motion for leave to file a second amended complaint based on evidence discovered after the denial of the motion for leave to amend (see CPLR 2221 [e]). In a prior appeal from the order that decided plaintiffs' original motion for leave to amend, we directed the court to enter judgment dismissing this action with prejudice on the ground that, by the time plaintiffs made that motion, we had already dismissed the claims remaining in the amended complaint, i.e., theft of trade secrets and aiding and abetting breach of the duty of fidelity, leaving no complaint to amend (BGC Partners, Inc. v Avison Young [Can.], Inc., 192 A.D.3d 498 [1st Dept 2021], Iv dismissed 37 N.Y.3d 1226 [2022]). Further, during the pendency of the motion to renew and the appeal from the denial of the motion to amend, we issued the above-cited order directing the court to enter judgment dismissing the action with prejudice and denied a motion for reargument or leave to appeal to the Court of Appeals, despite the fact that we had been presented with the newly discovered evidence that was the basis for the motion to renew"(BGC Partners, Inc. v Avison Young (Can.), Inc., 205 A.D.3d 603, 603-04 [1st Dept 2022], Iv to appeal dismissed 39 N.Y.3d 933 [2022], rearg denied 39 N.Y.3d 1063 [2023]).
Plaintiffs then sought to appeal both the First Department's March 2021 and May 2022 decisions and orders. The Court of Appeals dismissed plaintiffs' motion for leave to appeal in its October 2022 decision and order, stating:
"Motion, insofar as it seeks leave to appeal from the March 2021 Appellate Division order, dismissed upon the ground that it does not lie, appellants having
previously moved in the Court of Appeals for leave to appeal (37 N.Y.3d 1226 [2022]) from the same Appellate Division order from which they currently seek leave to appeal (see Selinger v Selinger, 90 N.Y.2d 842 [1997]); motion, insofar as it seeks leave to appeal from the May 2022 Appellate Division order, dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution"(BGC Partners, Inc. v Avison Young (Can.), Inc., 39 N.Y.3d 933 [2022], rearg denied 39 N.Y.3d 1063 [2023]).
Plaintiffs' motion to reargue the October 2022 Court of Appeal's decision was denied (39 N.Y.3d 1063 [2023]).
Now, to the extent that this action was not dismissed with prejudice as directed by the First Department in its April 2018 and March 2021 decisions and orders, it is
ORDERED that this court's July 2016 decision and order (Doc 86) resolving MS 02 [defendants' motion to dismiss] is amended, pursuant to the April 2018 and March 2021 First Department decisions and orders, to the extent that plaintiffs' amended complaint, including the causes of action for theft of trade secrets, aiding and abetting breach of the duty of fidelity, and injunctive relief, is dismissed with prejudice, and the Clerk is directed to enter judgment dismissing the action (see BGC Partners, Inc. v Avison Young (Can.) Inc., 160 A.D.3d 407 ; BGC Partners, Inc. v Avison Young (Can.), Inc., 192 A.D.3d 498 [1st Dept 2021]); and it is further
ORDERED that this court's January 2020 decision and order (Docs 342, 344) denying MS 09 [plaintiffs' motion for leave to file a second amended complaint] is amended, pursuant to the March 2021 First Department decision and order, solely to clarify that the extent that the prior dismissals were with prejudice (see BGC Partners, Inc. v Avison Young (Can.), Inc., 192 A.D.3d 498 [1st Dept 2021], Iv to appeal dismissed!! NY3d 1226 [2022], and Iv to appeal dismissed 39 N.Y.3d 933 [2022], rearg denied 39 N.Y.3d 1063 [2023]); and it is further
ORDERED that the court declines to sign plaintiffs' proposed "judgment" (Doc 452) because it is unnecessary, exceeds the scope of the First Department's instructions, and appears to be an attempt to resuscitate prior appeals or generate new ones.