Vashovsky v Zablocki

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Vashovsky v Zablocki 2022 NY Slip Op 34334(U) December 21, 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 12/21/2022 09:22 AM NYSCEF DOC. NO. 384 RECEIVED NYSCEF: 12/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERC:IAL 8 ----. ------------------- --~---- -- --- X CHANA VASHOVSKY, individual ly- and derivativ ely on behalf of . HUDSON VALLEY NY HOLDINGS LLC, Plaintiffs , Decision and Order -against-,IndexNo. 507373/21 Y0SEF ZABLOCKI arid NATIONAL JEWISH CONVENTION CENTER, Defendant s, And HUDSON VALLEY NY HOLDINGS LLC, --------- --- - - - December 21, 2D22 Nominal Defendant , --------- -- - -,--------x YOSEF ZABLOCKI and NATIONAL JEWISH CONVENTION CENTER, Countercla im Plaintiffs , -againstCHANA VASHOVSKY and EPHRAIM VASHOVSKY, Countercla im-Defend ants, ·-------·-·. - - - · - - . - - - - - · ---.--.- .. ---·- .. --.- .---· j{ YOSEF ZABLOCKI, Third-Par ty Plaintiff , -against,- ELLIOT ZEMEL, EPHRAIM VASHOVSKY, ZVG@ PALISADES LLC., and VASCO VENTURES LLC, Third-Par ty Defendant s, --------- --- --- - --------- ---- - - ~ ---x PRESENT: HON. LEON RUCHELSMAN The third party defendant s have moved pursuant to CPLR §2221 seeking to reargue a portion of the decision and order dated November 7, 2022 which denied the thi;r::d party defendant 's moti.on tqdismis stwo causes of action of the third party .complaint . The third party plaintiff has opposed the motion, Papers were submitted by the parties and after :reviewing all the argume::nts [* 1] 1 of 6 INDEX NO. 507373/2021 FILED: KINGS COUNTY CLERK 12/21/2022 09:22 AM NYSCEF DOC. NO. 384 RECEIVED NYSCEF: 12/21/2022 this 'oourt .n.ow makes th;e. follqwing· .d.etermipation ~ 111 the :prior' decis.ion the court denied the request seekin:g to di".smiss causes o.f action for the breach of a fiduciary duty and the: brea-ch of the ·_q:ovenant of g.ood :raith and fai.r dea._lirig. The third party defendants seek to reargue those determinatio ns. Specific.ally , the .court held that there wer.e questions of fact whether Ephr-a±m Vas-hovsky; as: a representativ e· qf Cl)ana Vashovsky owed any fidu.ciary duty~ ".First~ there is little met·it to the argum_ent a- p-lead.:i-n.g may hcit inc.orporate other .pleaoin,gs in the sa_me a._ction. The d.ase of Card v. Budini, 2°9 _AD2d_ 3'5, 28_5 NYS2d 734 [3 rd Dept., 1967·] dealt with the incorporatio n o.f pleadings. from a di-f.ferent ·acti_.on ;:ind in any event .held that such error did not render the cause of action deficient. Further; Angeli's- v. Town o:t· New Ba·ltimo·re, ..i".8 Misc3d 1141.(Al, 85·9 NYS2d 892- [Supreme Court Greene County 2005]. the court again noted that it is ''neither good. practice nor p.rope-r· technical procedu:i;::.e" t,o._ iri.cqrporate pleatjihgs- from other· .cases,_ however, held that " i t is al_.s9 t1'le case in New York tha_t civil pleadings mus.t be •liberally ·constru:ed ah-d def·ects mu-st be ignored. if a substantia:l right is not p·_r.:ej-udic.ectf' (.i.d) . Considering the history of this case, surely there can be no prej"uclic.e to the, third party defendant Vasho-vsky by inccrpo,r-ating other pleadings from this-- very case. The third_ party defencl.ants have not presented 2 [* 2] 2 of 6 ahy new INDEX NO. 507373/2021 FILED: KINGS COUNTY CLERK 12/21/2022 09:22 AM NYSCEF DOC. NO. 384 RECEIVED NYSCEF: 12/21/2022 evidence or any new arguments that there are ho questions of fact Mr. Vashovsky may have maintaine d a fiduciary duty to 1:he third party plaintiff whi.ch he may have breached. This is particula rly true wpen _consideri ng the contract entered into between Ephraim Vashovsky arid Yossi Zablocki as will be discussed below. Further, in an affidavit of Ephraim Vashovsky dated January 26, 85] Mr. VashovSky stated that "for years, 2022 [NYSCEF Doc. No. as Plaintiff 's agent, I have assisted, my wifei Mrs. Vashovsky arid M:r. Zablocki with.the general business dealings of HVNY and also helped generate business and foster potential client relations at the HVR, to the extent allowed by Mr. Zablocki" (id at CU:4). Furthermo re, Chana Vashovsky submitted an affidavit dated January 27, 2022 [NYSCEF Doc. No. 84], Her affidavit states that "since HVNY's inception and at my request, my husband, Ephraim Vashovsky ("Ephraim ''), has acted as my agent and nominee with respect to the operation of HVNY. According ly, Ephraim has coordinat ed the lion's share of the communica tions with Defendant s Yosef Zablocki. and the National Jewish Conventio n Center on my behalf" (id. , at 'l12} . Thus, both the plaintiff and Mr. Vashovsky have admitted Ephraim's role as an agent of the plaintiff . Therefore , the motion seeking to reargue the denial of the dismissal of this cause of ac::tion is denied. Turning to the motion seeking to reargt.ie the denial of.the dismissal of the cause of action alleging a breach of the implied 3 [* 3] 3 of 6 INDEX NO. 507373/2021 FILED: KINGS COUNTY CLERK 12/21/2022 09:22 AM NYSCEF DOC. NO. 384 RECEIVED NYSCEF: 12/21/2022 c.ovenant of good faith and fi3.ir dealing, the third p:arty d_~fendarits .a_;rgue .any c9ntract entered between Ephraim vashovsky and Yoss:i. Zablocki cannot be enforc:eable. since it was superceded by the HVNY operating a-greeme.nt which indicated that "this Agreement sets forth th.e entire· agreement among the· Members and s·upersedes all prio·r discussions and unde.rsta.nd.ing s. ·in respect of the Company or of this Agreement, .and this Agreement shall -not be modified .or amendedr except as provided in Section 9. 8 here6f" (see, Amended and ·Restated O.p.eratin.g Agreemeni: of lluoson valley NY Holdings .LLC, '.i19.. ll [NYSCEF Doc, No. 3.]) . It is well settled that a merger clause which states the agreetnent represents the e-ntire _unde.tstandilt g between· the parties. .is ''to require full application of the parole evidence rule i.n order to bar the ·introduction 0£ extrinsic evidence to va.ry o:r .-contradict the .terms of the writinglf (_Primex Internationa l Corp., v .. Wal-Mart Stores Inc., 89 N-Y2d 59.4, 657 NYS2d 385 [1997)). However, it is clearly note:c;l that Eptp:~im va-snovsky c:lid hot sign the: HVNY .operati.hg a.g.reemen.t at all, thu,s, t;t1e co,ntract p,;;,twe.e;;n Vashovsky an:d Zablocki is i.ndepend~nt of and creates othe-.t duties ,and obligations that :are outside. the o_pe._rati-~.g agr~ernen.t.~- contract d"oes state that "Yo.ssi Zablocki and The Ephraim Vashov.sky wi11 each. be 50/50 partners in above LLC;' (see, E.xbibit lA [NY-SCEF Doc. No-. 28.3}') and that such _q_lause may have been superseded by tne opeJ:;ating agreement executed 4 [* 4] 4 of 6 by Chana INDEX NO. 507373/2021 FILED: KINGS COUNTY CLERK 12/21/2022 09:22 AM NYSCEF DOC. NO. 384 Vashovsky. RECEIVED NYSCEF: 12/21/2022 Indee.4, it is dLE:ficult_ to ungerst~nd how Chana- a contract and thereby supercede Vashovsky can,_ execute a docum_ent . . . entered .irito by her husband, Ephra•im_. This is_s_ue may cast doubt tip.on the contr'3.ct p.nd the qperating ag:t'eemeht since t.hey conf1.iC:t However, for purposes of this with e,ach other in key respects. rnotiori"-, the contr-act aiso states that Ephraim V-ashov.sky w,Lll be r-espons.ible .for ah additional $350,,b.OO, that Ephraim Va$hOV$ky will be responsib:le for ''closing costs of attorney fees, points 9n m9rtg_age, title. insµfance, and es.crow -rci.oney for t.a.xe-s/ihsura nce" and that Eph:raim Vashovsky and Yoss,i Zablocki The third party wiil split .a $200,000 manager salary (id)~ def-enqa·nts .insist- ·that \\any ··obligation of -.good -faith and fair dealing tha:t might have been imposecl uppn Mr, \rasnovsky by the April tb document as a '-~0/50' partner in HVNY was obviously e.xtinguished -by the HVNY Ope·r:atihg Agreement -which. pr.ovid.~s, i:n substance, that Mrs. Vashovsky - rather than Mr~ Vashovsky - is (see, Memorandum. in Support, 'Z~b-10.c)d' s :iQ/5d partner in f.IVNY" page 11 [NY$GEF Do.c, No. 336]). However, th,e contract:: and the dperating agreement were not executed by the sa-tne individuals, thus, t_he cb.ntract agreement. cannot be· superseded ·by th~. opera,ting Indeed, the argument that the contract was superseded undermines the-, argument that Ephraim Vasho.v-sky h.!;l.d nothing whatsoever to do· with the h9tel ..and th12:refo;rE;=, cannot possibly be found to have breached any fiduciary duties. 5 [* 5] 5 of 6 It is contradictory INDEX NO. 507373/2021 FILED: KINGS COUNTY CLERK 12/21/2022 09:22 AM NYSCEF DOC. NO. 384 RECEIVED NYSCEF: 12/21/2022 to argue Ephraim VashovSky had no involvement in the hotel and all and yet acknowledge he -sighed a con.tract with Yossi Zablocki accepting duties and obligations in the very same hotel. The existence of this contract further supports the argument that Ephraim Vashovsky was quite involved in the hotel and supports the conclusion there are questions of fact whether be breac::hed any fid,uciary cluty ciS well c1s the covepant of good faith and fair dealing. Therefore; based on the foregoing, the motion st::c:eking reargument is denied. So ordered. ENTER: DATED: December 2:L, 2022 Brooklyn N.Y. Hoh. JSC 6 [* 6] 6 of 6

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