| Tornheim v Blue & White Food Prods. Corp. |
| 2010 NY Slip Op 03906 [73 AD3d 747] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Uri Tornheim, Appellant, v Blue & White Food ProductsCorp., Respondent. |
—[*1] Blank Rome LLP, New York, N.Y. (Harris N. Cogan, Ryan E. Cronin, and LittlerMendelsohn, P.C. [Joseph E. Field], of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff is the beneficial owner of20% of the shares of the stock in the defendant, Blue & White Food Products Corp., and torecover damages for breach of contract, the plaintiff appeals, as limited by his brief, from somuch of an order of the Supreme Court, Rockland County (Nelson, J.), entered November 12,2008, as denied those branches of his motion which were for summary judgment on the first,second, and fifth causes of action and on the issue of liability on the fourth and sixth causes ofaction, pursuant to CPLR 3211 (b) to dismiss the third, fourth, fifth, sixth, seventh, and tenthaffirmative defenses, and pursuant to CPLR 3103 (c) and 3126 (3) to strike the answer.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2000 the plaintiff, Uri Tornheim, approached the defendant, Blue & White Food ProductsCorp. (hereinafter Blue & White), about opportunities for entering the business of baking anddistributing bourekas, which are puffed pastries filled with cheese, spinach, potatoes, or othervegetables. Tornheim and Zohar Norman, who was then the president of Blue & White, signed amemorandum of understanding (hereinafter the MOU), which was written in Hebrew. Accordingto a translation of the MOU submitted by Tornheim, it states that Tornheim agreed to work forBlue & White for six months, at the end of which he was to be given the option of buying 20%of the stock in the company. According to Norman, the MOU states that, at the end of the sixmonths, the parties would discuss the possibility of Tornheim joining the company in somecapacity. Although Tornheim testified at his deposition that he worked for Blue & White for sixmonths, and was paid the sum of $800 per week, he was unable to submit any paychecks intoevidence. Blue & White submitted evidence that Tornheim "was never in the factory," and thathe did not fulfill his obligations according to his own translation of the MOU.
Norman shut down the boureka-making business in June 2001. Sulamis Schonfeld,Tornheim's wife and assignee, commenced the instant action against Blue & White on April 1,2004, alleging breach of contract and seeking a judgment declaring that she owned 20% of Blue& White. [*2]Tornheim was substituted for her as the plaintiff inthis action on July 30, 2007. Tornheim moved for summary judgment on the first, second, andfifth causes of action and on the issue of liability on the fourth and sixth causes of action, and, asrelevant to this appeal, pursuant to CPLR 3211 (b) to dismiss Blue & White's third, fourth, fifth,sixth, seventh, and tenth affirmative defenses. He also moved to strike Blue & White's answer onthe ground, inter alia, that Blue & White improperly accessed his matrimonial litigation file. Inan order entered November 12, 2008, the Supreme Court denied Tornheim's motion. Tornheimappeals, and we affirm the order insofar as appealed from.
The Supreme Court properly denied that branch of Tornheim's motion which was to strikethe answer on the ground that Blue & White improperly accessed his matrimonial litigation file."Domestic Relations Law § 235 (1) prohibits a court employee from disseminating papersfiled in a matrimonial action but does not place any such prohibition on litigants" (Parker v Parker, 2 Misc 3d 484,492 [2003]). Tornheim does not dispute that his ex-wife consented to the disclosure of hisdeposition testimony from their divorce action.
The Supreme Court also properly denied those branches of Tornheim's motion which werefor summary judgment on the first, second, and fifth causes of action and on the issue of liabilityon the fourth and sixth causes of action. Although Tornheim established his prima facieentitlement to judgment as a matter of law by submitting the MOU and his translation of it,demonstrating that he had an option to buy 20% of Blue & White's stock, Blue & White raisedtriable issues of fact in opposition by submitting a conflicting translation, under which Tornheimhad no option to buy, and by submitting evidence that Tornheim failed to comply with the termsof the MOU—even according to his own translation (see generally Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]).
Lastly, the Supreme Court properly denied those branches of Tornheim's motion which wereto dismiss the third, fourth, fifth, sixth, seventh, and tenth affirmative defenses. Tornheim failedto meet his burden of demonstrating that the defenses cannot be maintained (see CPLR3211 [b]; Matter of Harrison v State of New York, 262 AD2d 833 [1999]; Connelly vWarner, 248 AD2d 941 [1998]; Winter v Leigh-Mannell, 51 AD2d 1012 [1976]).
Tornheim's remaining contentions are raised for the first time on appeal and, accordingly, arenot properly before this Court (seegenerally Schehr v McEvoy, 43 AD3d 899, 900 [2007]). Mastro, J.P., Eng, Belen andAustin, JJ., concur.