Opinion
Index No. 652352/2021 MOTION SEQ. Nos. 001 002
11-03-2023
JAVA GLOBAL LLC, and JAMES C COX JR, Petitioners, v. FRANK GIORDANO, Respondent
Unpublished Opinion
MOTION DATE 05/17/2021
PRESENT: HON. DEBRA A. JAMES, Justice
DECISION + ORDER ON MOTION
Debra A. James, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92 were read on this motion to/for CHANGE VENUE.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46, 47, 48, 49, 50, 51,52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 71 were read on this motion to/for CHANGE VENUE.
ORDER
Upon the foregoing documents, it is
ORDERED that the petition of JAVA GLOBAL LLC, and JAMES C COX, JR, to remove the action Giordano v Java Global LLC, et. al., bearing Index No. CV-003257-20/NY, pending in the New York City Civil Court, to the Supreme Court of New York (motion sequence number 001) is DENIED and the herein proceeding is DISMISSED, with statutory costs and disbursements; and it is further
ORDERED that respondent, having an address at ___, do recover from petitioners, having an address at ___, costs and disbursements in the amount of $ ___, as taxed by the Clerk, and that respondent have execution therefor; and it is further
ORDERED that to the extent he seeks dismissal of the petition, the cross-motion of the respondent FRANK GIORDANO, is GRANTED; and it is further
ORDERED that the cross motion of respondent for sanctions is denied; and it is further
ORDERED that the motion of the petitioners JAVA GLOBAL LLC, and JAMES C COX to remove the action Giordano v Java Global LLC, et. al., bearing Index No. CV-003257-20/NY, pending in the New York City Civil Court to the Supreme Court of New York (motion sequence number 002) is DISMISSED, as moot.
DECISION
This proceeding arises out of a business relationship between petitioners Java Global/James Cox, Jr. ("Cox") and respondent Giordano. The parties were real estate agents and orally agreed to share commissions for certain transactions on which the parties collaborated. The petition alleges that the parties dissolved their collaboration in September 2019.
Respondent Frank Giordano ("Giordano") commenced an action in the Civil Court of New York, New York County captioned Giordano v Java Global LLC, et. al., bearing Index No. CV-003257-20/NY (the "Civil Court Action") by summons and complaint seeking the balance of commissions allegedly outstanding from certain transactions where the parties had collaborated. Java/Cox answered and asserted a counterclaim seeking a declaration that Cox was entitled to 25% of the commissions received by Giordano for any closed transactions relating to Ethan and Adel Silverstein (the "Silversteins") based on an alleged oral agreement between the parties in October 2019. In his counterclaim, Cox alleges upon information and belief that a transaction with the Silversteins closed after October 2019, but does not provide any other details regarding the property or the basis of his information and belief other than conclusory allegations.
In opposition, Giordano denies that the parties reached an oral agreement in October 2019 after the parties undisputedly severed their business relationship in September 2019. He submits an email wherein the Silversteins specifically state they are not interested in working with Cox in July 2019 (NYSCEF Doc. No. 91).
Thereafter, Cox commenced the instant special proceeding seeking to remove the Civil Court Action to this court pursuant to CPLR 325(b) because the Civil Court lacks subject matter jurisdiction over actions for declaratory relief.
This court finds that removal is not warranted as the true nature of the counterclaim of petitioners at bar/defendants in the Civil Court Action is a counterclaim for money. It is well established that a declaratory judgment action is improper and unnecessary where a claim for damages is available. A review of the counterclaim shows that a "full and adequate remedy" is already available in the Civil Court of New York, i.e., a breach of contract action for money damages. See Automated Ticket Sys., Ltd, v Quinn, 90 A.D.2d 738, 739 (1st Dept 1982), aff'd, 58 N.Y.2d 949 (1983) .
Java/Cox's motion for removal (motion sequence number 002) seeks the same relief as the petition and is dismissed, as moot.