Vashovsky v Zablocki

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Vashovsky v Zablocki 2022 NY Slip Op 34170(U) December 8, 2022 Supreme Court, Kings County Docket Number: Index No. 507373/21 Judge: Leon Ruchelsman 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. INDEX NO. 507373/2021 FILED: KINGS COUNTY CLERK 12/08/2022 12:15 PM NYSCEF DOC. NO. 378 RECEIVED NYSCEF: 12/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUN'I'Y OF KINGS : CIVIL TERM: COMMERCIAL 8 - ---- ------------- ------------- -- -- -x CHANA VASHOVSKY; individually arid derivatively on behalf of HUDSON VALLEY NY HOLDINGS LLC, PlaintiffS, -against- Decision and Order Index No. 507373/21 YOSEF ZABLOCKI and NATIONAL JEWISH CONVENTION CENTtR, Defendants, And Decernber 8., 2022 HUDSON VALLEY NY HOLDINGS LLC, Nominal Defendant, -·--·---- .- ·-·-... ------·---·---- .·----·-·-----·-·--x· YOSEF ZABLOCKI and NATIONAL JEWISH CONVENTION CENTER, Counterclaim Plaintiffs, -againstCHANA VASHOVSKY and EPHRAIM VASHOVSKY, C6uriterclaim-Defendants,. ------- ----------- -- -------- -------- X PRESENT: HON. LEON RUCHELSMAN The defendants have moved pursuant to CPLR §3024 seeking to strike plaintiff's allegations relating to the :::;ixteenth cause of action and to dismiss that cause of action. cross-movec::l seeking to compel discov:ery. The The plaintiff has motions have been opposed respectively and after reviewing all the arguments this court now makes the following determination. In. a prior decision dc1ted August 2.5; 2022 the court granted . . the defendant's rnotion to dismiss the. sixteenth cause of action of the plaintiff'$ second a.mended comp.laint alleging the fra0,dulent transfer of assets. The court based tha:t determination on the legai e.o.nc1usion that claim wa::i dupiic2;1.tive [* 1] 1 of 5 INDEX NO. 507373/2021 FILED: KINGS COUNTY CLERK 12/08/2022 12:15 PM NYSCEF DOC. NO. 378 RECEIVED NYSCEF: 12/08/2022 of any breach of contract claims contained in the complaint. The plaintiff ha,s served a third~party complaint and has included the sixteenth cause of action within the new complaint despite the fact such cause of action was dismissed. The plair1tiff argues that the court never concluded the claim did not have merit, rather the "claim was only dismissed because it was duplicative of the Breach of Contract Action" (see, Memorandum of Law in Opposition, page 7 [NYSCEF Doc. No. 342]) . However, when a cause of a:ctiori is dismissed as duplicative it means no such cause of action exists ( ~ , Dormitory Authority v. Samson Construction Company, 30 NY3d 70 4, 7 o- NYS3d 8 93 [ 2018] ) . It does not mean the allegations that support the cause of action Still have some value because they assert facts relevant to the case as a whole. Indeed, the proper expedient seeking to dismiss a c;ause of action as duplicative is a motion to dismiss pursuant to CPLR §3211(7) highlighting that if duplicative the cause of action is dismissed. Indeed, the plaintiff curiously argues that "each of the Allegations deals with the d.:Lversioh of fuhds .and the improper collection 0£ payments for stays at HVR.,,This Court explicitly fourid that those allegations support and relate to the 'duplicative; brea:ch of contract claim soi therefore, the Motion Of course, the court did not must be denied" (id at page 7). hold that duplicative allegations "support" any breach of contract action. Rather, the court simply held the fraud claims 2 [* 2] 2 of 5 INDEX NO. 507373/2021 FILED: KINGS COUNTY CLERK 12/08/2022 12:15 PM NYSCEF DOC. NO. 378 RECEIVED NYSCEF: 12/08/2022 were duplicative of the breach of contract caµse of action and dismissed the cause of action on that ground. Thus, the paragraphs that support that cause of action must be removed from any complaint. Therefore, the motion seeking to remove paragraphs 270-277 of the third amended complaint is granted. Further; the court denied the request to dismiss the fraudule.nt inducement cause of action. Thus, the court will now examine the remaining paragraphs to determine whether they should likewise be removed. The first paragraph mentions fraud, however, it also mentions other causes of action as well and the fraud could reasonably be read to refer to the fraudulent irid~cement claim. Thus, except for the reference to 'wire fraud' which must be removed, the remainde.r of the paragraph is proper. Turning to other paragraphs, the motion seeking to remove paragraph 5 is granted. The motion seeking to remove paragraph 7 is deriiedand except for the word 'fraudulent' contained in paragraph 8 the motion seeking to remove paragraph 8 is denied. Paragraphs 18-26 do not involv.e. £raud at al.l but rather involve allegations of other improper conduct which can support bre:ach of contract as well as breach of fiduci_ary duty claims and other claims. Therefore, the motion seeking to remove :those paragraphs is. deriied. denied. .The motion seeking to rernov.e paragraphs 64 and 67 is The motion seeking to remove paragraphs 70-117 and 154 is denie.d. Other than ass.orted re.ferences to the words 'fraud' .3 [* 3] 3 of 5 INDEX NO. 507373/2021 FILED: KINGS COUNTY CLERK 12/08/2022 12:15 PM NYSCEF DOC. NO. 378 RECEIVED NYSCEF: 12/08/2022 or 'fraudulent' the facts alleged do not necessarily only deal with the duplicative fraudulent transfer of assets claim. Rather, the facts alleged support breach of c6ntract as well as other causes of action. Turning to the plaintiff's cross."""motion seeking discovery, the plaintiff's seek the tax returns of defendant Zablocki and the tax returns for NJCC and Destinations., entities owned by Zablocki as well as bank statements and credit card .staternents from Zablocki and the two entities. It is well settled that corporate tax returns and all corporate financial statements are properly the subject of discovery (see, Chaudhry v. Abadir, 261 AD2d 497, 692 NYS2d 399 [2d Dept., 1999]). It is further well settled that tax returns of incl.ivictuals may be produced during discovery if the information is necessary to the litigation and Cannot be obtained from any other source (Sachs v. Adeli, [l5t Dept., 2005]) . 26 AD3d 52, 804 NYS2cl. 731 The defendants have failed to present any reason why the tax returns. should hot be discoverable in this case ( Pugli:ese v. Mondello, 57 AD3d 637, 871 NYS2d 17 4 [2d Dept,, 2008]). Furtherr the defendant has not really presented any reason why the financial iflformation sought should not be furnished to the plaintiff. The information is relevant, material and may support many of the plaintiff's ~llegations. Further, the plaintiff cannot obtain: this information from any 4 [* 4] 4 of 5 FILED: KINGS COUNTY CLERK 12/08/2022 12:15 PM NYSCEF DOC. NO. 378 INDEX NO. 507373/2021 RECEIVED NYSCEF: 12/08/2022 other source. Therefore, the defendant must furnish all information requested which is contained requests three through eight of the demand served on October 26, ZQ:21 (see, NYSCEF Doc. No. 340) within thirty days of receipt o-f this order. So ordered. ENTER: DATED: December 8, 2Q22 Brooklyn N.Y. Hon. Leon Ruchelsman JSC 5 [* 5] 5 of 5

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