Freidman v Fayenson (2011 NY Slip Op 51361(U))

Freidman v Fayenson

2011 NY Slip Op 51361(U) [32 Misc 3d 1219(A)]

Decided on July 14, 2011

Supreme Court, Queens County

Markey, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

A preliminary conference was held in this action on June 6, 2011. Defense counsel did not attend, working under a misunderstanding. The order that was issued based on that preliminary conference, upon the Court's review, contains language that is factually incorrect. The undersigned, therefore, vacates the preliminary conference order dated June 6, 2011, in all respects.

The parties to this action have filed various discovery motions and cross motions. Upon holding a conference in this action on the return date of those motions, it became apparent that before any discovery in this action in Queens County may go forward, a decision needs to be rendered on a pending motion and cross motion in an action in Supreme Court, New York County, under index number 650106/2011, under the name of Freidman v Fayenson, et al. That motion is currently sub judice before Justice Eileen Bransten. In that action, Tenenbaum & Berger, LLP, have been named as counterclaim-defendants, pursuant to CPLR 3109.

Thus, there is a possible legal issue of whether or not Tenenbaum & Berger, LLP, may legally represent plaintiff Naum Freidman in the Queens County action. The present action in Queens County may not be transferred to New York County since it seeks partition of real property located in Queens County. CPLR 507 ("The place of trial of an action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property shall be in the county in which any part of the subject of the action is situated.").

Thus, the Court, in addition to vacating the aforementioned preliminary conference order [*2]in its entirety, directs the parties in this action, within 30 days of the filing of the decision and order by Justice Bransten, to notify the Clerk of the Preliminary Conference Part in the Jamaica courthouse to schedule a new preliminary conference and to set new dates for the scheduling of discovery and the filing of a note of issue and any summary judgment motions.

Accordingly, the motion and cross motions in this action seeking discovery, with the consent of counsel, are deemed withdrawn, without prejudice to being made again, if so advised.