Bierbauer v Implement Mktg. Group, LLC

[*1] Bierbauer v Implement Mktg. Group, LLC 2010 NY Slip Op 52203(U) [29 Misc 3d 1239(A)] Decided on December 21, 2010 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2010
Supreme Court, Queens County

James Bierbauer, et al., Plaintiff,

against

Implement Marketing Group, LLC, et al., Defendants.



27453/2010



Appearances:

For the Plaintiffs: Benjamin & Vasilatos, LLC, by Scott P. Benjamin, Esq., 28-09 Ditmars Blvd., Astoria, NY 11105

For the Defendants: Stephen I. Feder, Esq., 116-55 Queens Boulevard, Forest Hills, NY 11375- - and - - Warren S. Dank, Esq., 62 Belmont Circle, Syosset, NY 11791

Charles J. Markey, J.

The following papers numbered were read on this motion:Papers Numbered

Notices of Motion, Affirm., Exhibits..............................................................1

Affirmations in Opposition..............................................................................2

Affirmations in Reply.......................................................................................3

Stipulation of November 4, 2010......................................................................4

Charles J. Markey, J.:

The plaintiffs James Bierbauer and Joseph Salamone, by emergency order to show cause dated October 29, 2010, move for an order of attachment. The Court, on the return date of the motion, December 16, 2010, heard extensive oral argument from counsel that afternoon and has considered the arguments made and the citations to authority made during the argument by both counsel.

The plaintiffs allege that they are the victims of a massive fraud and scam concocted by the defendants, involving acts of fraud and lies, manipulations, and fabrications by the defendants inducing the plaintiffs to make a substantial investment. In light of the emergency nature of the application, this Court has accelerated its review of this case.

The Court has read all of the papers submitted on the motion, the exhibits, and the oral argument of counsel. The Court is satisfied that plaintiffs have amply demonstrated by an abundance of proof, including affidavits of nonparty witnesses, that their accusations are substantial, real, and not of an imagined nature. Particularly striking are the two affidavits of the two nonparty witnesses, Jason Stallworth and Joseph Besson, both sworn to on October 15, [*2]2010, that provides an independent basis as to the type of fraud being attempted upon the plaintiffs.

The defendants have failed to explain how the sum of $10,000 was spent within a four hour span. Stallworth has attested that defendant Joel J. Borgella, in late July 2010, displayed a large wad of money, approximating $10,000.00 and described how he obtained the money from the plaintiff James Bierbauer. At this meeting, Borgella continued, according to Stallworth's sworn statement: "That's how you get $10,000 out of nowhere" (Stallworth affidavit, para 12, at page 3). Besson's affidavit amplifies that the defendants urged participants, in a deception of the plaintiffs, to "stick to the plan" (Besson Affidavit, para. 12, at pages 2-3).

The Court also finds the arguments contained in the reply affirmation of Scott P. Benjamin, Esq., to be persuasive and compelling. For purposes of any appeal, the transcript of the oral argument made before the undersigned on Dec. 16, 2010 shall also be considered part of the record.

At oral argument, Warren S. Dank, Esq., one of the lawyers for the defendants, argued vigorously against an order of attachment, contending that plaintiffs have failed to show "irreparable harm" and would be protected by a money judgment. This Court does not agree and relies on the analysis of the Appellate Division, Second Judicial Department in the similar and recent case of Dana v Shopping Time Corp., 76 AD3d 992 [2010] and also Mineola Ford Sales Ltd. v. Rapp, 242 AD2d 371 [1997].

The Court grants the motion by plaintiffs for an order of attachment. Specifically, the Court grants an order of attachment, in the amount of $86,000.00, without notice, pursuant to CPLR 6211(a), directing the sheriff to levy, immediately and/or at any time before final judgment, such property in which the defendants have an interest and that will be used to satisfy such debts of an eventual judgment, including, but not limited to, property located at 47-32 32nd Place, Long Island City, in the County of Queens, New York. Such order of attachment shall be subject to confirmation pursuant to CPLR 6211(b).

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

December 21, 2010