Zeidman v Chen 2024 NY Slip Op 31932(U) June 4, 2024 Supreme Court, New York County
Docket Number: Index No. 650584/2024 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.650584/2024 ZEIDMAN, ANDREW vs. HARRISON L. CHEN, DDS, P.C. ET AL

Motion No. 001 Page 1 of 4 The following e

- filed documents, l isted by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, 30, 31, 32

were read on this motion to/for DISMISS

.

Defendants’ motion to dismiss is granted for the reasons stated below.

Background

Th is dispute concerns plaintiff’s attempt to sell his dental practice to defendants.

Defendants point out that plaintiff has another pending case, also before the undersigned, arising

out of the same dispute. They observe that in both cases, plaintiff brought claims for breach of

contract, fraudulent inducement , for an accounting and for legal fees. Defendants contend that

plaintiff was not permitted to simply bring a new action because he did not like the way the first

action was handled. They argue that this case should therefore be dismissed pursuant to CPLR

3211(a)(4) because there is a prior action pending. Defendants also seek sanctions.

In opposition, plaintiff contends that this case contains different allegations. He

maintains that the Dr. Chen defau lted under the terms of the parties’ promissory note in June

2023 and so there is a new default. Plaintiff claims that his attorney attempted to get defendants

to stipulate to the filing of an amended complaint in the other action but that defendants’ coun sel



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. ARLENE P. BLUTH PART 14
Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 650584/2024

MOTION DATE 05/31/2024

MOTION SEQ. NO. 001

DECISION + ORDER ON MOTION ANDREW ZEIDMAN,

Plaintiff,

- v
- HARRISON L. CHEN, DDS, P.C.,HARRISON CHEN

Defendant s

.

------------------------------------------------------------------- -- ------------ X INDEX NO. 650584/2024

NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/04/2024

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### [* 1]650584/2024 ZEIDMAN, ANDREW vs. HARRISON L. CHEN, DDS, P.C. ET AL

Motion No. 001 Page 2 of 4 refused to consent. Plaintiff also argues that the causes of action asserted in this case are against

a corporate defendant which is not a party to the 2022 action. Plaintiff argues that, in any event,

sanctions are not appropriate.

In reply, defenda nts contend that plaintiff admits that the original parties in the first

action are the same parties in this action. They also observe that plaintiff acknowledges that in

that first action, plaintiff made a motion to dismiss defendants’ cou nterclaims on th e ground that

an entity did not exist (although plaintiff still sought affirmative relief against this non

- existent

entity). Defendants observe that the contracting parties have not changed between the time the

first and second actions were each commenced and that this case is merely a second bite at the

apple for plaintiff, who failed to properly appeal decisions in the first action.

Discussion

A matter may be dismissed pursuant to CPLR 3211(a)(4) where “ a pending action existed

between the same parties for essentially the same relief and involving the same actionable

wrong” ( GSL Enterprises, Inc. v Citibank, N.A. , 155 AD2d 247 , 546 NYS2d 857 [1st Dept 1989]

[internal quotations and citation omitted]).

Some context is required in this Court’s analysis. In the previous action, this Court noted

that although plaintiff sued an entity called Harrison Chen, DDS, P.C. concerning the same

contract at issue in this action, it turned out that the actual name of the corporate entity had Dr.

Chen’s middle initial ( Harrison L . Chen, DDS, P.C.) (NYSCEF Doc. No. 66 in Index Number

656793/2022). The Court observed that plaintiff admitted that “neither the contracted party nor

the named entity legally exist” ( id .). However, rather than moving on to the merits, plaintiff

simultaneously insisted that this non

- existent entity was not permitted to assert counterclaims

against him but that he could nevertheless assert affirmative claims against t his non

- existent INDEX NO. 650584/2024

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### [* 2]650584/2024 ZEIDMAN, ANDREW vs. HARRISON L. CHEN, DDS, P.C. ET AL

Motion No. 001 Page 3 of 4 entity. Obviously, that posit ion was internally inconsistent and so the Court dismissed this entity

from the case as there was no dispute it did not exist

. As defendants point out, plaintiff did not move to reargue or p u r s u e a n appeal f o r th at

decision. Nor did he move to amend his complaint to proceed on the merits of his breach of

contract claims. Instead, plaintiff failed to oppose a default motion on Dr. Chen’s counterclaims

and the Court granted that motion and ordered an inquest at time of trial (N YSCEF Doc. No. 80).

Nearly a year later, plaintiff made a motion to renew the Court’s decision, a motion which the

Court denied (NYSCEF Doc. No. 116). And according to defendants, plaintiff failed to timely

perfect his appeal of the Court’s decision conce rning the motion to renew (NYSCEF Doc. No.

31, n 1).

This context suggests that the instant action is a blatant attempt at judge shopping.

Plaintiff apparently did not like the way in which the first action was proceeding so he

commenced a separate case arising out of the same exact issue

— the contract to sell the dental

practice. Plaintiff even admits he tried to get defendants’ consent to file an amended complaint in

the first action, but instead of making a motion for that relief in the first action he brought the

instant case. That suggests that the cases are “for essentially the same relief.”

Of course, a review of the complaints in each matter demonstrates that the Court should

dismiss the second action pursuant to CPLR 3211(a)(4) as both concern the same exact subject

matter. That the parties are not currently exactly the same is of no moment. Plaintiff had ample

opportunity to amend his complaint in the first action to name the correct corporate entity ( the

one with Dr. Chen’s middle initial) a nd yet he decided to bring this case instead (and attempt to

get it referred to the Commercial Division and therefore to a different judge than the

undersigned ). INDEX NO. 650584/2024

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### [* 3]650584/2024 ZEIDMAN, ANDREW vs. HARRISON L. CHEN, DDS, P.C. ET AL

Motion No. 001 Page 4 of 4 However, the Court declines to issue any sanctions. The Court views this a c t i o n as new

attorneys t rying to clean up the fallout from t h e d e c i s i o n s i n the r e l a t e d c a s e . Lying and cheating

a r e sanctionable b u t a poor o r u n s u c c e s s f u l legal strategy is not. And so while plaintiff’s actions

are confounding, it could be chalked up to cou nsel making a n unpersuasive a t t e m p t t o r e p a c k a g e

t h e c l a i m s a t i s s u e h e r e ; it is not wholly frivolous or so beyond the pale that sanctions are

appropriate.

Accordingly, it is hereby

ORDERED that defendants’ motion to dismiss is granted and the Clerk is directed to

enter judgment accordingly in favor of defendants and aga inst plaintiff along with costs and

disbursements upon presentation of proper papers therefor.

6/ 4 /2024 $SIG$ DATE ARLENE P. BLUTH, J.S.C.

CHECK ONE: X CASE DISPOSED NON

- FINAL DISPOSITION

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE INDEX NO. 650584/2024

NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/04/2024

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