Orders to Show Cause 1-2Ex Parte Application 3Notice of Motion 4Affirmation 5Affirmation in Opposition 6Affirmation in Reply 7-8 Upon the foregoing papers, the applications, by Order to Show Cause, by plaintiff, Raymond Sipperley (Seq. #001, #002), seeking confirmation of an ex-parte Order of Attachment, pursuant to CPLR Article 62, are both denied; and the cross-motion of defendant, Astred Rodriguez (Seq. #003), seeking dismissal of plaintiff’s complaint, pursuant to CPLR §3211(a)(1), (7), (8) and (10), is denied, as determined below.This is an action in which plaintiff, Raymond Sipperley, as judgment creditor of a legal entity known as Astra Pacific Outdoor, LLC, seeks payment for a judgment rendered in an action entitled Raymond P. Sipperley v. Astra Pacific Outdoor LLC, Nassau County Supreme Court Index Number 11884/2014, and entered on September 19, 2016 in the Office of the Nassau County Clerk, as and against defendant, Astred Rodriguez. The complaint alleges, inter alia, that Astred Rodriquez is the judgment debtor’s managing member and 62.5 percent interest holder in the limited liability company, who committed a fraudulent transfer of the judgment debtor’s assets, in violation of Article 10 of New York Debtor and Creditor Law, subsequent to the entry and service of the judgment. The allegations in the complaint state that the judgment debtor’s assets were sold to All Over Media for a sum in excess of $5,000,000.00, with defendant retaining her 62.5 percent ownership in Astra Pacific, LLC and distributing the proceeds of the asset sale to herself and the other members of the limited liability company, as a result of the fraudulent transfer.Plaintiff’s application, by Order to Show Cause, dated December 19, 2018, seeks to confirm this Court’s ex parte Order of Attachment of defendant’s brokerage account(s) held by Ameriprise Financial, pursuant to CPLR §§6219 and 6211 (#001); plaintiff’s application, by Order to Show Cause, dated January 16, 2019, seeks the same relief set forth in motion Seq. #001, and an extension of time for service upon defendant, of its application by Order to Show Cause, that defendant be deemed served, nunc pro tunc on December 27, 2018 (#002). Both applications are denied, as untimely.Pursuant to CPLR 6211(b), plaintiff must move to confirm the ex parte Order of Attachment within five days after levy. See, CPLR §6211(b). A motion on notice is made when a notice of the motion or an order to show cause is served. See, CPLR §2211; Cespedes v. City of New York, 172 A.D.2d 640, 568 N.Y.S.2d 440 (2nd Dept.1991). Pertaining to the requirement of five days within which to “move” pursuant to CPLR 6211(b), ‘filing’ is not the equivalent of moving for purposes of CPLR 6211(b), which requires service of the motion papers as directed by the court; failure to make a timely motion to confirm is fatal under this section of the CPLR. See, Voice Communications, Inc. v. Bello, 12 Misc.3d 318, 813 N.Y.S.2d 295 (Sup. Ct. Nassau County 2006) (citations omitted)(emphasis added).Applied herein, the Nassau County Sheriff served the order of attachment on the Nassau County Clerk on December 13, 2018. Thereafter, on December 19, 2018, plaintiff presented the Order to Show Cause to Confirm the Order of Attachment on before the Hon. R. Bruce Cozzens, at which time the court directed service of the order to show cause be made on or before December 27, 2018. In as much as plaintiff failed to serve the order to show cause upon defendant within five days of the sheriff’s levy on December 13, 2018, the motion to confirm the ex parte order of attachment is untimely. While this Court is without discretion to increase the statutory maximum of five days, it is required to vacate the order of attachment. See, Thadford Realty Co. v. L.V. Income Properties Corp., 101 A.D.2d 814, 476 N.Y.S.2d 346 (2d Dept. 1984), Voice, supra, CPLR 6211(b).Accordingly, plaintiff’s applications (Seq. #001 and #002) are denied, as untimely and plaintiff’s ex parte Order of Attachment is hereby vacated.This Court now turns to defendant’s cross-motion for dismissal of plaintiff’s complaint. Defendant contends that this Court lacks personal jurisdiction over the defendant, who is a resident of the State of California and has never conducted business within the State of New York, as an individual or as a sole proprietorship, and, that plaintiff has failed to name a necessary party, Astra Pacific Outdoor, LLC. Defendant further contends that plaintiff’s complaint fails to meet the pleading requirements for a cause of action sounding in fraud, pursuant to CPLR 3016(b). In support of its motion, Movant submits, inter alia, the affidavit of defendant, Astred Rodriguez (hereinafter “Rodriquez”).In her affidavit, Rodriguez attests that she is one of three owners of Astra Pacific Outdoor, LLC (hereinafter “Astra Pacific”), the judgment debtor, and that Astra Pacific made the asset sale in 2015, prior to the judgment’s entry. The Rodriquez affidavit states that she is a domiciliary of the State of California and that she has not transacted business in the State of New York for herself or for a sole proprietorship.In opposition, Plaintiff contends that defendant’s own testimony at post-enforcement proceedings admits that the sale of the limited liability company assets to All Over Media took place in March of 2016, and, that the judgment debtor is not necessary to resolve this dispute. Plaintiff asserts that defendant is subject to jurisdiction in the State of New York based upon the fact that she is the managing member and 62.5 percent owner of the judgment debtor, and where, by her own testimony, she admits that she worked in New York and was engaged in interstate commerce.In support of its opposition, plaintiff submits, inter alia, copies of the transcript of defendant’s testimony at the post-enforcement proceeding, a press release of Allover Media announcing the acquisition of Astra Pacific in March 2016 and the transcript of judgment entered September 19, 2016.The facts alleged in the complaint and the affidavits in opposition to the motion to dismiss are deemed true and must be construed in the light most favorable to the plaintiff, with all doubts resolved in the plaintiff’s favor (Global Marine Power, Inc. v. Kuston Engines & Performance Engineering, LLC, 108 AD3d 501) [2d Dept 2013]; Weitz v. Weitz, 85 AD3d 1153 [2d Dept 2011]; Cornely v. Dynamic HVAC Supply, LLC, 44 AD3d [2d Dept 2007]; Brandt v. Toraby, 273 AD2d 429, 430 [2d Dept 2000]).In deciding whether an action may be maintained in New York against a non-domiciliary defendant, the court must first determine whether jurisdiction exists under New York’s long-arm statute based upon the defendant’s contacts with this state; and, if it does, the court then determines “whether the exercise of jurisdiction comports with due process” (LaMarca v. Pak-Mor Mfg. Co., 95 NY2d 210, 214 [2000]). The ultimate burden is on the plaintiff to demonstrate that such requirements have been met (Mejia-Haffnerv Killington, Ltd., 119 AD3d 912 [2d Dept 2014]; Goel v. Ramachandran, 111 AD3d 783, 788 [2d Dept 2013]; Paterno v. Laser Spine Inst., 112 AD3d 34, 39 [2d Dept 2013]).Under New York’s long-arm statute, “a court may exercise personal jurisdiction over any non-domiciliary…who “commits a tortious act without the state causing injury to person or property within the state.” (CPLR 302[a][3]). With respect to both subparagraphs (i) and (ii) [of CPLR §302(a)(3), it has been held that the original injury must occur in New York. If the injury occurs outside New York and just becomes manifest in New York, or has its greatest consequences in New York… the statute is not satisfied." See, Paterno, v. Laser Spine Institute, 112 A.D.3d 34, 973 N.Y.S.2d 681, 689 (2d Dept. 2013) (citations omitted). "[A] plaintiff relying on this statute must show that (1) the defendant committed a tortious act outside New York; (2) the cause of action arose from that act; (3) the tortious act caused an injury to a person or property in New York; (4) the defendant expected or should reasonably have expected the act to have consequences in New York; and (5) the defendant derived substantial revenue from interstate or international commerce (see LaMarca v. Pak — Mor Mfg. Co., 95 N.Y.2d 210, 214, 713 N.Y.S.2d 304, 735 N.E.2d 883 [2000]). If these five elements are met, a court must then assess whether a finding of personal jurisdiction satisfies federal due process (see id. at 216, 713 N.Y.S.2d 304, 735 N.E.2d 883).” Penguin Group (USA) Inc. v. American Buddha, 17 N.Y.3d 295, 946 N.E.2d 159, 921 N.Y.S.2d 171 (2011)Upon this Court’s review of the parties’ submissions, and contrary to defendant’s contentions, the situs of the alleged initial injury of defendant’s fraudulent transfer of the judgment debtor’s assets occurred outside of New York, in the State of California, and Rodriguez knew or should have known of the expected injury caused to the plaintiff, a New York State judgment debtor. In as much as the complaint includes allegations that the defendant acted as managing agent of the judgment debtor when the alleged fraudulent transaction took place, and the submissions before this Court evidence that defendant regularly transacted business in the State of New York. Plaintiff makes a prima facie showing of jurisdiction over the defendant pursuant to CPLR 302(a)(3), and the portion of defendant’s motion to dismiss on the basis of lack of personal jurisdiction is denied.Regarding the portion of defendant’s motion for dismissal for failure to join necessary parties, CPLR 3211(a)(10), CPLR 1001(a) provides that necessary parties include those “who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action” See, Matter of Castaways Motel v. Schuyler, 24 N.Y.2d 120 [1969]; Spector v. Toys “R” Us, Inc., 12 AD3d 358, 784 NYS2d 153 [2d Dept. 2004]). Joinder is indicated where there is a possibility that a judgment rendered without a party could have an adverse practical effect on said party and where rights in the subject matter would be jeopardized See, Llana v. Town of Pittstown, 234 A.D.2d 881, 651 N.Y.S.2d 675 [2d Dept. 1996]).To determine the question of dismissal for failure to join a necessary party, the court must first determine whether the missing party is a necessary party under CPLR 1001. See, Joanne s. v. Carey, 115 AD2d 4 [1st Dept. 1986]. CPLR 1001(b) directs that any party who should be joined pursuant to CPLR 1001(a) and is subject to the jurisdiction of the court be named and joined by the court. In addition, courts are afforded broad latitude in determining whether parties are to be added to an action pursuant to CPLR 1001. See, Gross v. BFH Co., 151 AD 2d 452 [2d Dept. 1989]; Micucci v. Franklin General Hospital, 136 AD2d 5278 [2d Dept. 1988]. Dismissal for failure to join a necessary party is treated as a last resort by this provision. See, Red Hook/Gowanus Chamber of Commerce v. New York City Bd. of Standards and Appeals, 5 N.Y.3d 452, 805 N.Y.S.2d 525 [2005]; Siegel NY Practice, 268.It remains undisputed by the parties that there exists more than one shareholder in the judgment debtor limited liability company. While the complaint alleges that the fraudulent transfer of the limited liability company’s assets was made by the individual defendant, Rodriguez, and that this transfer distributed funds prior to the satisfaction of plaintiff’s judgment, it appears that the limited liability company and other individual shareholders are not necessary to the adjudication of plaintiff’s allegations contained in the complaint, and defendant’s motion for dismissal for failure to join necessary parties is denied.Lastly, regarding defendant’s motion to dismiss for failure to plead allegations of fraud with particularity, pursuant to CPLR §3016(b), a review of the plaintiff’s complaint shows allegations of fraud including claims that the defendant violated specific provisions of New York State Debtor and Creditor Law. While the complaint includes allegations that defendant took funds from the judgment debtor through the alleged transfer of the limited liability company assets, the complaint adequately pleads, with particularity, a cause of action for fraud; and defendant’s motion to dismiss on this basis is denied.This Court find’s the defendant’s remaining contentions without merit. Accordingly, defendant’s motion to dismiss is denied in its entirety.This constitutes the decision and Order of this Court. Any relief not expressly granted herein is denied.Dated: May 24, 2019
