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Kenzo Digital Immersive, LLC v Zeitgeist Parallax
Inc.
2022 NY Slip Op 30943(U)
March 23, 2022
Supreme Court, New York County
Docket Number: Index No. 150452/2021
Judge: Debra A. James
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.NYSCEF DOC. NO. 24
INDEX NO. 150452/2021
RECEIVED NYSCEF: 03/23/2022
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. DEBRA JAMES
Justice
---------------------------------------------------------------------------------X
KENZO DIGITAL IMMERSIVE, LLC and DAVID KENZO
HAKUTA,
Plaintiff,
- V -
ZEITGEIST PARALLAX INC. and CATHERINE NOVICK,
Defendants.
---------------------------------------------------------------------------------X
PART 59
INDEX NO. 150452/2021
MOTION DATE 03/23/2022
MOTION SEQ. NO. 001
DECISION + ORDER ON
MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13,
14, 17, 18, 19, 20, 21
were read on this motion to/for STRIKE PLEADINGS
ORDER
Upon the foregoing documents, it is
ORDERED that the motion pursuant to CPLR 3024(b) of
plaintiffs to strike paragraphs 81 through and including 87, and
paragraphs 89 through and including 90 of the counterclaims
interposed in the Answer of defendants Zeitgeist Parallax Inc.
and Catherine Novick is granted, and such counterclaims are
deemed to have been so amended; and it is further
ORDERED that plaintiffs shall post on NYSCEF their Answer
to such counterclaims within ten (10) days of service of a copy
of this order with notice of entry; and it is further
ORDERED that counsel are directed to transmit to SFCPart59@nycourts.gov and to SFC-Part59-Clerk@nycourts.gov and
150452/2021 KENZO DIGITAL IMMERSIVE, LLC vs. ZEITGEIST PARALLAX INC.
Motion No. 001
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post on NYSCEF a proposed preliminary conference order or
competing proposed preliminary conference order(s) no less than
two days before April 8, 2022, on which date counsel shall
appear via Microsoft Teams, unless such appearance is waived by
the court.
DECISION
In Soumayah v Minnelli, 41 AD3d 390, 392-393 (1 st Dept
2007), the Court stated:
Supreme Court also erred in denying that aspect of the
motion seeking to strike the seventeenth and eighteenth
paragraphs of the amended complaint on the ground that
these paragraphs contain "scandalous or prejudicial
matter" that was "unnecessarily inserted" in the
complaint (CPLR 3024 [bl). In reviewing a motion
pursuant to CPLR 3024 (b) the inquiry is whether the
purportedly scandalous or prejudicial allegations are
relevant to a cause of action (see New York City Health
& Hosps. Corp. v St. Barnabas Community Health Plan, 22
AD3d 391 [2005]; Bristol Harbour Assoc. v Home Ins. Co.,
244 AD2d 885, 886 [1997]; Wegman v Dairylea Coop., 50
AD2d 108, 111 [1975], lv dismissed 38 NY2d 918 [1976];
see also Rice v St. Luke's-Roosevelt Hosp. Ctr., 293
AD2d 258, 259 [2002]).
Here, the allegations that defendant Minnelli asked
plaintiff how much money he wanted not to initiate
suit and that she asked him to reconsider such action
are not, at this point, relevant to plaintiff's
claims. As a general rule, offers to compromise are
inadmissible at trial (CPLR 4547). Thus, the
allegations related to such are irrelevant and should
be struck (see Siegel, NY Prac § 230, at 380 [4th ed]
["relevancy is still the best key to whether matter is
'unnecessarily' pleaded, and the best key to relevancy
is whether it would be admissible in evidence at the
trial"]; Siegel, Practice Commentaries, McKinney's
Cons Laws of NY, Book 7B, CPLR C:3024:4, at 323 ["In
general, we may conclude that 'unnecessarily' means
'irrelevant'. We should test this by the rules of
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evidence and draw the rule accordingly. Generally
speaking, if the item would be admissible at the trial
under the evidentiary rules of relevancy, its
inclusion in the pleading, whether or not it
constitutes ideal pleading, would not justify a motion
to strike under CPLR 3024 (b)"]). The allegations
regarding the offers to compromise are not necessary
for the sufficiency of plaintiff's causes of action
for assault and battery, sexual harassment or
retaliatory discharge and wrongful termination and
"may instill undue prejudice in the jury" (Wegman, 50
AD2d at 111). Thus, the most prudent course of action
at this juncture is to strike the allegations (see
Schachter v Massachusetts Protective Assn., 30 AD2d
540 [1968] [" (O) n balance, it would be more in keeping
with sound discretion and the interests of justice to
preserve defendant's right to a fair trial by not
permitting plaintiff to invoke the liberal rule with
respect to pleadings and allege the aforesaid
prejudicial unnecessary matter under the guise of
relevancy, which we do not find at this posture of the
proceedings. We make no determination as to the
relevancy or irrelevancy of such evidentiary matter at
the trial, predicated on what may be adduced thereat.
Nor is it intended, by striking these allegations,
that, if said evidentiary matter should become
relevant at the trial, they cannot be proved without
being specifically averred in the amended complaint"];
see also Van Caloen v Poglinco, 214 AD2d 555, 557
[1995]; JC Mfg. v NPI Elec., 178 AD2d 505, 506
[ 1991 J l •
So too here, the references to settlement negotiations and
plaintiff's allegations of threat of litigation should such
settlement negotiations fail made in the subject paragraphs of
defendants Answer are unnecessary with respect to defendant's
counterclaims for violations of NYC Admin. Code§ 20-927, et seq
(Freelance Isn't Free Act). The allegations with respect to
threatening litigation should no settlement be achieved is
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Motion No. 001
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tautological, and is thus, not probative on the issue of
retaliation. See L. Heller & Son, Inc. v Lassner Co., 214 AD315
(1st Dept 19 2 5) .
20220323175616DJAMESD8063ASEDB6C405FBFSASCA2BFAE001F
JJ-~ ;1 - } ~
3/23/2022
DATE DEBRA JAMES, J.S.C.
CHECK ONE:
~ CASE DISPOSED ~ NON-FINAL DISPOSITION
GRANTED • DENIED GRANTED IN PART • OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT • REFERENCE
150452/2021 KENZO DIGITAL IMMERSIVE, LLC vs. ZEITGEIST PARALLAX INC.
Motion No. 001
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