Solid Transit Inc. v. Venture Opportunities Corp.

256 A.D.2d 127, 681 N.Y.S.2d 282, 1998 N.Y. App. Div. LEXIS 13273

Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about November 18, 1997, which denied plaintiffs’ motion to strike defendants’ answers for failure to comply with a disclosure order, granted the cross motion by the Venture defendants for summary judgment dismissing the action as against them, and granted the cross motion of the Calderon defendants to consolidate the action with another action pending in Queens County, unanimously affirmed, with costs.

The action was properly dismissed as against the Venture defendants absent any showing that they acted improperly in calling in the loan after plaintiff Solid’s default. Plaintiffs, whose relationship to Venture Group is defined by a written security agreement, and who derived a benefit from the foreclosure sale of their medallions, cannot claim unjust enrichment. With the dismissal of the Venture defendants, there is no significant nexus with New York County, the dispute being one between plaintiff Mendez and defendant Calderon over the distribution of the surplus realized at the foreclosure sale, and the transfer of the action to Queens County, for consolidation there with Calderon’s related, previously filed action, was a proper exercise of discretion. Plaintiffs’ motion to strike was mooted by the transfer to Queens, any possible prejudice to plaintiffs being remedied by giving them additional time to appear in the Queens action and staying disclosure pending the transfer and consolidation. We would also note that plaintiffs presumably possess the loan documents and canceled checks for their payments on the subject loan that they seek to discover, that they do not dispute that such payments were made only to defendant Venture Group, and that the identity of the purchasers of the medallions and the price paid therefor at the foreclosure sale are matters of public record. Concur— Sullivan, J. P., Milonas, Wallach, Williams and Mazzarelli, JJ.