Opinion
No. 652293/2019
03-29-2023
Muoi T Luong, Plaintiff, v. Ha The Luong, LUONG'S MANAGEMENT LLC., NGO'S MANAGEMENT INC., and ZANADU REALTY OF N.Y. LTD, Defendants.
Steven T. Gee, Esq., New York, NY, for plaintiff. The Konopka Law Group, New York, NY (Michael Konopka of counsel), for defendants.
Unpublished Opinion
Steven T. Gee, Esq., New York, NY, for plaintiff.
The Konopka Law Group, New York, NY (Michael Konopka of counsel), for defendants.
Gerald Lebovits, J.
This motion arises from a dispute among family members about ownership of several business entities (and the real property held by those entities). This court previously granted the CPLR 3211 (a) (1) motion of defendant Zanadu Realty of NY Ltd. to dismiss the claims against it of plaintiff, Muoi Luong. (See Luong v Ha The Luong, 2020 NY Slip Op 50489[U], at *6-7, *11 [Sup Ct, NY County Apr. 28, 2020].) This court held that Zanadu had established through corporate tax returns that plaintiff lacked an ownership interest in that entity. (Id. at *7.) The court also gave weight to the fact that plaintiff "did not plead that she owned any shares in Zanadu," nor provide "a stock certificate or any other document setting forth her ownership interest." (Id.)
Plaintiff now brings on a motion to renew by order to show cause. Plaintiff contends that newly discovered documents establish that plaintiff does indeed have an ownership interest in Zanadu, and therefore that the dismissal of plaintiff's claims against Zanadu should be vacated. Plaintiff also asks this court, in effect, to grant a temporary restraining order staying a parallel Housing Court proceeding, in which Zanadu is seeking to evict plaintiff from the apartment building that it owns. Plaintiff's motion to renew, and her request for a TRO, is denied.
1. Plaintiff's renewal motion is based on three sets of documents. One category of documents consists of multiple-dwelling-registration statements filed with the New York City Department of Housing Preservation and Development (HPD) for the building owned by Zanadu, some of which list plaintiff as an owner of Zanadu. (See NYSCEF No. 155 at ¶ 26 [affirmation of counsel]; NYSCEF No. 164 [registration statements].) But in granting Zanadu's motion to dismiss, this court already held that an HPD website summary of one of those statements that "identifies plaintiff as an officer and a shareholder in Zanadu.... [i]s not competent proof of her ownership in Zanadu." (Luong, 2020 NY Slip Op 50489[U], at *2, *7.)
Plaintiff does not give a reason why the original registration statements themselves would be entitled to different (greater) evidentiary weight on the issue of Zanadu's ownership. That omission is particularly telling given that the distinction between a person's being an owner of Zanadu versus being merely an officer or agent of Zanadu would carry little weight for many statutory purposes. (See Ellouzi v Sherman, 2019 NY Slip Op 50555[U], at *2 [Civ Ct, NY County] [holding that given the breadth of the definition of owner in the Multiple Dwelling Law and the New York City Housing Maintenance Code, a building's managing agent counts as the building's "owner" for purposes of an HP proceeding in Housing Court].) Nor does plaintiff provide authority for the (implicit) position that these registration statements should be entitled to greater weight on the ownership issue than the corporate tax returns provided by Zanadu on the prior motion that listed plaintiff's brother, Anh Luong, as its sole shareholder. (See Luong, 2020 NY Slip Op 50489[U], at * 2.)
2. Plaintiff also relies on a 1995 civil forfeiture complaint brought by the U.S. Attorney's Office for the Eastern District of New York against Ha The Luong, a defendant here. (See NYSCEF No. 155 at ¶¶ 15-20 [affirmation of counsel].) That complaint sought forfeiture of numerous properties and assets of Luong as the alleged fruit of narcotics trafficking. (See generally NYSCEF No. 162.) One of those properties was the Brooklyn building owned by Zanadu. (See id. at ¶ 18.) The complaint alleged several reasons to believe that this building was purchased and maintained using funds derived from drug trafficking, and therefore that the building was subject to civil forfeiture. (See id.; see also ¶¶ 19-30 [claims for relief].) In the course of making those allegations, the complaint also stated that "Zanadu Realty is owned by Anh [Luong] and Muoi [Luong]." (Id. at ¶ 18.) Plaintiff now contends that this statement "establish[es] Ms. Muoi's ownership in the company," i.e., Zanadu, for purposes of the current action. (NYSCEF No. 155 at ¶ 18.) This court disagrees.
At most, this language from the civil-forfeiture complaint shows that as of 1995, the federal government had sufficient reason to believe that plaintiff was a part-owner of Zanadu to allege it for explanatory-background purposes in a pleading. It does not appear from the complaint that this statement was needed to support the government's claims for relief with regard to Zanadu's property. Plaintiff does not show that the question of Zanadu's ownership was at issue in the civil-forfeiture proceeding more broadly. And plaintiff does not state (or document) how that forfeiture proceeding was ultimately resolved.
3. The only additional information about the forfeiture proceeding that plaintiff provides is that the building "was eventually retained by defendant Zanadu after [p]laintiff filed a claim for seized property" in the proceeding, "on behalf of and as President of Zanadu Realty." (NYSCEF No. 155 at ¶ 21.) But the only documentation provided by plaintiff for that statement is her own claim document, rather than any determination by a court or the federal government about the fate of the building. (See id.; see also NYSCEF No. 163 ["Claim for Seized Property].) And plaintiff does not explain why a 1995 document in which she lists herself as an officer of Zanadu, rather than its owner, supports her present ownership claim. (See NYSCEF No. 163 at 1, 2.)
In short, the new evidence that plaintiff brings forward on this motion is entitled, at best, to limited probative weight. That evidence does not persuade this court that it should alter its prior determination about Zanadu's ownership.
Accordingly, it is
ORDERED that the branch of plaintiff's motion for renewal is denied; and it is further
ORDERED that the branch of plaintiff's motion seeking a temporary restraining order is denied; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of its entry on all parties in the action, including defendant Zanadu.