Marx v Island Hills Golf Club, Inc.

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Marx v Island Hills Golf Club, Inc. 2017 NY Slip Op 30573(U) March 24, 2017 Supreme Court, Suffolk County Docket Number: 010930-2011 Judge: John H. Rouse Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] <:OPY rDEX NO. 010930-~0l l t SUPREME COURT - STATE OF NEW YORK 1.A.S. PART 12 - SUFFOLK COUNTY I PRESENT: Hon. John H. Rouse Acting Supreme Court Justice MO ION DATE: 01118/2017 AD . DATE: 02/22/2017 Mot. Seq. 006-MD ROBERT MARX; ANTHONY PUGLISI; LARRY GRAYSON; JOHN ERRA; STEPHEN R. CANTOR; CRAIG HINCK; WAYNE HALL; JOSEPH PARADISE; KEITH BELCHER; PETER FIORILLO; GLENN ZACHARY; SEAN HARTMAN, as Executor of the Estate of WILLIAM HARTMAN; C. DONALD SCHLIMBAUM; PAUL SOUTHARD; HOWARD SAMUELS; MARC HOWARD; CHARLES G. FIRMBACH; ALEXANDER BUCHANAN; THOMAS J. LYNCH; DIPAK PATEL; CRAIG BREWER; WAYNE BREWER; CARMINE AVELLINO, SR.; PETER ROSENTHAL; PETE SCHAAF; WAYNE LICKER; DA YID DITKOWICH; STEVEN MEMOLI; JEROME STEVENS PHARMACEUTICAL; GERALD SULLIVAN; MICHAEL A. ROMEO; JOHN HEINTZ; FRANK GIORGIO; NORMAN RUSS; JOE STUDLEY; DENNIS KANFER; FRED WERFEL; JOE BONJJORNO; DREW J. SAPEDE, as Executor of the Estate of DONALD A. SAPEDE; ROBERT TRINCHETTO; BERNARD FRANKEL, MICHELLE BODNER and WILLIAM B. SIEGEL, as sole heirs of ADOLPH SIEGEL, CASSATA ORGANIZATION, DENNIS O'HARA; KEVIN BALKAM and DOUG VALERO, Plaintiffs ACTION I Index No. 0 I 0930-20 I I DECISION & ORDER -againstISLAND HILLS GOLF CLUB, INC., ATTORNEY GENERAL OF THE STATE OF NEW YORK and JOHN DOES T inclusive, -X, Defendants Page I of 6 Please purchase PDFStamp Command Line product to remove this watermark. http://www.verypdf.com [* 2] Before the HON. WILLIAM G. ASHER SUPREME COURT, SUFFOLK COUNTY TN AND FOR THE STATE OF NEW YORK CARL R. PTV ARSKY, JR., as Co-Trustee under the Last Will and Testament of Carl R. Pivarsky, Sr., deceased, Plaintiff ACTION II -against385 IH LLC, CLAIRE PIV ARSKY a/k/a CLAIRE M. PIVARSKY a/k/a CLAIRE G.M. PIVARSKY, Individually; CLAIRE PlV ARSKY a/k/a CLAIREM. PIVARSKY a/k/a CLAIRE G.M. PIYARSKY, as Trustee of the Trust benefitting ROSELLEN MCCANN pursuant to the Last Will & Testament of CLAIRE G. MCCANN, deceased; CLAIRE PIV ARSKY a/k/a CLAIRE M. PIV ARSKY a/k/a CLAIRE G.M. PIV ARSKY as remaining Co-Trustee under the Last Will and Testament of CARL R. PIYARSKY, SR., deceased; and 458 LAKELAND AVENUE LLC, Index No. 603543/2016 Defendants Page 2 of 6 Please purchase PDFStamp Command Line product to remove this watermark. http://www.verypdf.com [* 3] Before the HON. ELIZABETH EMERSON SUPREME COURT, SUFFOLK COUNTY IN AND FOR THE STATE OF NEW YORK ROBERT MARX, ANTHONY PUGLISI, LARRY GRAYSON, JOHN ERRA, STEPHEN R. CANTOR, CRAIG HlNCK, WAYNE HALL, JOSEPH PARADISE, KEITH BELCHER, PETER FIORILLO, GLENN ZACHARY, SEAN HARTMAN as Executor Of the Estate of WILLIAM HARTMAN, C. DONALD SCFIUMBAUM, PAUL SOUTHARD, HOWARD SAMUELS, MARC HOWARD, CHARLES G. FIRMBACH, ALEXANDER BUCHANAN, THOMAS J. LYNCH, DIPAK PATEL, CRAIG BREWER, WAYNE BREWER, CARMINE AVELLINO, SR., PETER L. ROSENTHAL, PETE SCHAAF, WAYNE LICKER, DA YID DITKOWICH, STEVEN MEMOLI, JEROME STEVENS PHARMACEUTICAL,GERALD SULLIVAN, MICHAEL A. ROMEO,JOHN HEINTZ, FRANK GIORGIO, NORMAN RUSS, JOE STUDLEY, DENNIS KANFER, FRED WERFEL,JOE BONTIORNO, DREW J. SAPEDE as Executor Of the Estate of DONALD A. SAPEDE, ROBERT TRINCHETTO, BERNARD FRANKEL, MICHELLE BODNER and WILLIAM B . SIEGEL as sole heirs of ADOLPH SIEGEL, CASSATA ORGANIZATION, DENNIS O'HARA,KEVIN BALKAM and DOUG VALERIO, Plaintiffs ACTION III Index No. 613247/2016 -againstISLAND HILLS GOLF CLUB, INC., CARL R. PIV ARSKY, JR., as Co-Trustee under the Last Will and Testament of Carl R. Pivarsky, Sr., deceased, R SQUARED JH, LLC, 385 IH LLC. CLAIRE PIV ARSKY a/k/a CLAIRE M. PIVARSKY a/k/a CLAIRE G.M. PIVARSKY, Individually; CLAIRE PIVARSKY a/k/a CLAIRE M. PIVARSKY a/k/a CLAIRE G.M. PIVARSKY, as Trustee of the Trust benefitting ROSELLEN MCCANN pursuant to the Last Will & Testament of CLAIRE G. MCCANN, deceased; CLAIRE PIVARSKY a/Ii/a CLAIRE M. PIV ARSKY a/k/a CLAIRE G.M. PIV ARSKY as remaining Co-Trustee under the Last Will and Testament of CARL R. PIVARSKY, SR., deceased, 458 LAKELAND AVENUE LLC, WILLIAM GRAD ANTE, ANTHONY CASSINO, ROBERT DIBASlE,KERRY EV ANS,JOSEPH VITARELLI, JAMES PLATE, JAY GORMAN and DOES I-X, inclusive, Defendants Page 3 of 6 Please purchase PDFStamp Command Line product to remove this watermark. http://www.verypdf.com [* 4] TO: WALSH&ROTH 360 ROUTE I 09 WEST BABYLON, NY 11704 631-321-7000 HAMBURGER, MAXSO , YAFFE & MCNALLY, LLP 225 BROADHOLLOW R AD, STE 301E, MELVILLE, NY 11747 631-694-2400 WILLIAM R. GARBARINO. ESQ. 40 MAIN STREET PO BOX 717 SAYVILLE, NY 11782 631-563-4411 COSTANTINO & COST NTINO ESQS 632 MERRICK RD COPIAGUE, NY 11726 BRODY, O'CONNOR & O'CONNOR, ESQS. 810 SEVENTH AVENUE, STE 2700 NEW YORK, NY 10019 212-233-2505 HERRICK FEINSTEIN 2 PARK AVENUE NEW YORK, NY 10016 212-592-1400 I VICTOR A. CARR & ASSOCIATES 88 SECOND STREET MINEOLA, NY 11501 516-747-2478 Upon the reading and filing of the following papers in this matter: (1) kotice of Motion by Plaintiffs in Action I dated December 16, 2016 for consolidation of three related actions pursuant to CPLR § 602, the Affirmation of David I. Roth, Esq. with Exhibits Aj-N attached thereto; (2) Affirmation in Opposition for Defendants in Action 11: R Squared IH, LLC; 385 IH, LLC; and 458 Lakeland Avenue, and 385 IH, LLC Defendant in Action ill, by Lane T. Maxson, Esq. affirmed on February 8, 2017 with Exhibits A and B attached thereto; (B) Affirmation in Opposition for Defendant Island Hills Golf Club, Inc. by Donald R. Hamill affirmed on February 8, 2017 with Exhibit A attached thereto; (4) Affirmation in Oppositio5 for Defendants Island Hills Golf Club, Inc., William Gradante and Robert Dibiase, by Scott A Brody, Esq. affirmed on February 8, 2017; and (5) Reply to Opposition to Motion for Consolidation for Plaintiffs in Action I by David I. Roth, Esq. affirmed on February 21, 2017; it is: I ORDERED that the motion (Seq. #006) by Plaintiffs in Action I for cofsolidation with Actions II and III is denied. DECISION Plaintiffs in Action I move to consolidate Actions I, II, and III. All thre~ actions pertain to or arise out of ownership, leasehold, or security interests in a 116.25 acre parcel of property located in Sayville, New York upon which a golf course has been in operation s ·nee 1927 and until recently was operated by Island Hills Golf Club, Inc. Action I Action I was commenced on April 1, 2011 and assigned to the Hon. Peter F. Cohalan, thereafter it was assigned to the Hon. Jerry Garguilo in or about December of 20lt, and then re-assigned to this Court in January of 20 I 5. Action I, in the Amended Petition I Complaint, seeks: 1. The repayment of bonds issued to the Plaintiffs in the amoun~ $1 ,5000.00 with interest; and Page 4 of 6 Please purchase PDFStamp Command Line product to remove this watermark. http://www.verypdf.com [* 5] 2. A declaration of the membership rights of Plaintiff Robert Island Hills Golf Club, Inc.; and farx in Defendant 3. The redemption of Escrow Bonds and the issuance of a Re acement Certificate in accordance with the "92 Plan"; and 4. An injunction prohibiting the Defendant Island Hills Golf lub, Inc. from "continuing with ultra vires" activity; and 5. Dissolution of Defendant Island Hills Golf Club, Inc. By Decision and Order of this court dated August 31, 2015 this Courtj.ranted Plaintiffs' motion (Seq. 005) for partial summary judgment on the first cause of action a d each of the Plaintiffs that had capacity to bring the action were granted a partial judgment in the amount of $1,500.00 together with interest. The movant informs the court this partial judg"lent has been satisfied as to all named Plaintiffs in Action I. Affirmation of David l Roth, Esq. par. 30. r Discontinued Petition for Dissolution On February 1, 2016, a Petition was filed by William Gradante, Kerry Evans, Anthony Cassino, Robert DiBiase, and John V. Rafter, collectively alleged to be "a majority ofthe active directors ofthe Board of Directors of Island Hills GolfClub, Inc. 11 for the judicit dissolution oflsland Hills Golf Club, Inc. See e-filed Petition Suffolk County Index Numbe 61047312016. This Petition for Dissolution was assigned to the Hon. Elizabeth Emerson. owever, on July 7, 2016, Petitioner executed a stipulation that vacated the stay that had previously been by the court and discontinued this petition for dissolution. This stipulation was so order ! by that court. Action 11 On March 4, 2016 Action II was commenced by the filing of summons and complaint. Plaintiff seeks: 1. The partition and sale of the 116.25 acre parcel of property Plaintiff for its equitable interest in the fee title; and Iith payment to · 2. A constructive trust upon the 75% ownership interest! purportedly obtained by Defendant 385 IH, LLC, as has peen alleged it obtained that interest from Island Hills Golf Club, Inc. (a non-party to this action); and ,H, 3. An award of $1,500,000.00 in damages from Defendant 385 LLC for its conversion of a sprinkler I irrigation system that runs throughout the 116.25 acre parcel. Page 5 of 6 Please purchase PDFStamp Command Line product to remove this watermark. http://www.verypdf.com [* 6] Action III On August 23, 2016 Action Ill was commenced by the same Plaintiffstn Action I in addition to the Defendant Island Hills Golf Club, Inc. in Action I, Plaintiff added Defendants in Action III both the Plaintiff and Defendants in Action II. Also named as a Defendant in Action III is R SQUARED IH, LLC whi h Plaintiffs allege secured an option to purchase an 18.75% interest in the fee estate of thb subject premises, and that through this option interest successfully prevented Island Hills Go~ Club, Inc. from securing either a new lease or a lease extension. Plaintiffs allege R SQUARED H, LLC was in league with officers oflsland Hills Golf, Inc. to obtain an appraisal that unde alued Island Hills Golf, Inc. interest in the property inducing the members to settle a foreclosur action on less favorable terms. Plaintiffs add an additional group of Defendants to Action III t¥t they contend are members and officers of Island Hills Golf, Inc. that have controlled thi ~ corporation and have engaged in improper self-dealing these Defendants being: William Gradante, Kerry Evans, Anthony Cassino, Robert DiBiase, Joseph Vitarelli, James Plate, Jay G rman, and "John Does IX. The foregoing description of the three actions is a limited synopsis of the material events that relate to the purchase by Island Hills Golf, Inc. of a 50% interest in the fee title, followed by the purchase of another 25% interest in the fee title, loans made to and a mf.rtgages executed by Island Hills Golf, Inc., the foreclosure action on the mortgage, an ensuiijg settlement with the sale of the 75% interest Island Hills Golf, Inc. had in the property, and the expiration of its lease to the premises. Current Status of Actions II and III In both Actions II and III there are dispositive motions pending. In Action II there is a motion to dismiss pursuant to CPLR 3211 (a)(3) and EPTL 10-10.7. In Action Illjthere is a motion to dismiss pursuant to CPLR § 3211 (a) (1) (5) and (7) by 458 Lakeland ~venue, LLC; 385 IH, LLC and R SQUARED IH, LLC (collectively the "Rechlers") and Cross Motion to Amend Complaint. Action III is pending in the Commercial Division which is a Part dedicated to the resolution of commercial cases such as these related actions. 22 NYCR4 § 202. 70 (b). Under these circumstances this Court will not consolidate the actions which might be resolved upon the motions pending therein, or otherwise may be more properly be addressed in the Commercial Division of the Supreme Court. Accordingly, the motion to consolidate lis denied with leave to renew in the Commercial Division should that Part so permit. I The foregoing shall constitute the decision and order o Dated: March 24, 2017 JOHN H. ROUSE r ing J.S.C. NON-FINAL DISPOSITION Page 6 of 6 Please purchase PDFStamp Command Line product to remove this watermark. http://www.verypdf.com

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