Opinion
Index No. 159533/2020 MOTION SEQ. No. 003
06-03-2022
DAMIEN KANG, on behalf of himself and as a shareholder owning greater than 20% of the issued and outstanding stock of KANG CORRECTIVE CHIRORACTIC, P.C., Petitioner, v. CHRISTIAN KANG and KANG CORRECTIVE CHIROPRACTIC, P.C., Respondents.
Unpublished Opinion
MOTION DATE 04/04/2022
PRESENT: HON. DEBRA JAMES, Justice
DECISION + ORDER ON MOTION
DEBRA JAMES, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60 were read on this motion to/for DISMISS.
ORDER
Upon the foregoing documents, it is
ORDERED that, to the extent that it seeks to dismiss the petition on the grounds of abandonment, the motion of respondents is denied; and it is further
ORDERED that, within fifteen (15) days of service of a copy of this Order with notice of entry, petitioner shall post on NYSCEF a notice of appearance; and it is further
ORDERED that should petitioner need assistance with filing such notice of appearance, he shall contact the New York County Supreme Court Help Center for Unrepresented Persons, 60 Centre Street, Room 116 (646-386-3120 or SFC-HelpCenterNY@nycourts.gov for help with electronic filing only); and it is further
ORDERED that, to the extent that it seeks to sever the counterclaims, the motion of respondents is denied; and it is further
ORDERED that, to the extent that it seeks a trial of the counterclaims, the motion of respondents is granted and the proceeding is set down for a trial on the petition and counterclaims; and it is further
ORDERED that a copy of this order with notice of entry be served by the movants upon the petitioner by regular first class mail at his last known address and upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who is directed, upon the filing of a note of issue and a certificate of readiness and the payment of proper fees, if any, to place this proceeding on the appropriate trial calendar for the trial of the claims and counterclaims hereinabove directed; and it is further
ORDERED that such service upon the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).
DECISION
The court recognizes that petitioner did not post his opposition papers and request for an adjournment until March 4, 2022, the return date of the motion to dismiss. As such papers were wholly untimely, the court does not consider same. However, given that in his reply papers, counsel for respondents acknowledges and appends petitioner's responsive papers that he represents that such counsel received by e-mail from petitioner, in time for respondents to post a reply, the court considers such opposition papers in opposition to respondents' motion to dismiss the petition.
Respondents are correct that petitioner has not complied with the directive of the Order entered on November 15, 2021, which directed petitioner to "notify the Clerk of the Part of [his] decision [to represent himself] in writing, within 30 days" after the mailing by his former attorney, "of a copy of this order with notice of entry" (NYSCEF Document 36). However, the court finds that petitioner constructively appeared when he posted papers in opposition, though wholly untimely, to the herein motion to dismiss of the respondents. Finding no prejudice to respondents with respect to the absence of a formal notice of appearance, the court shall now direct petitioner to formally post such notice of appearance on NYSCEF.
On September 2, 2021, former counsel for petitioner served, upon respondents and the Office of the General Clerk, the Order entered on August 6, 2021 (NYSCEF Document Number 28), which
Order set the case down for trial. Respondents point out that petitioner never complied with the directive in that same Order to file a note of issue and certificate of readiness. However, dismissal of a proceeding pursuant to CPLR 3404 is limited to proceedings where a note of issue and certificate of readiness have been filed, and this court finds no reason that respondents could not have made such filings in connection with the trial of their counterclaims. In any event, as filings of a note of issue and certificate of readiness have yet to be made in this case, dismissal of the petition on the ground of abandonment is unavailable. See Wilmington Trust, National Association v Mausler, 192 A.D.3d 1212 (3d Dept 2021). Nor are respondents entitled to dismissal of the petition on the grounds of lack of petitioner's prosecution pursuant to CPLR 3216, as respondents have not met the strictures of that statute. Wilmington Trust, ibid, p 1213.
A review of the NYSCEF docket shows that less than two weeks after the service of the Order entered on August 6, 2021, counsel for petitioner moved by show cause order to be relieved. The Order granting such relieved, stayed the proceeding for 40 days from service of such Order with notice of entry. As stated by respondents' counsel, such stay expired on December 10, 2021.
Finally, the fourth counterclaim for declaratory judgment interposed in the answer of respondents raises some of the same issues, adjudication of stock ownership, for example, that are implicated in the petition for corporate dissolution. To that extent, there is no prejudice to respondents, who seek a trial before this court with respect such declaration. See In re Three Hours Plants and Flowers, Ltd., 135 A.D.2d 396 (1st Dept 1987) .