Genger v Genger

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Genger v Genger 2010 NY Slip Op 33929(U) June 28, 2010 Sup Ct, New York County Docket Number: 109749/2009 Judge: Paul G. Feinman 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. [*FILED: NEW YORK COUNTY CLERK 07/02/2010 1] INDEX NO. 109749/2009 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 07/02/2010 SUPREME COURT OF THE STATE OF NEW YO K - NEW YORK COUNTY h~r-.. ,-n.v'- G. FEINMAN PART PRESENT: ) 9-_ Justice /{)~}io/O ff & INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. The following ' I apers, num~ ed 1 to _ _ were read on this / otion to/for \_ / ------PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... z Answering Affidavits - Exhibits ____________,'----- t.n Replying A f f i d a v i t s - - - - - - - - - - - - - - - + - - - - 0 t.n ~ Cross-Motion: a: Upon the foregoing papers, it is ordered that this motion Yes No w ~i 0 LI. t- w 0 J: w t- a: a: a: 0 ~ LI. w a: >- ...J ...J :::> LI. tu w a.. (/J w a: (/J ~\ (~ ~ J.S.C. I Check one: FINAL DISPOSITION Check if appropriate: DO NOT POST ON-FINAL DISPOSITION [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART 12 --------------------------------------------------------------------)( Index No. Mot. Seq. Nos. ORLY GENGER, in her individual capacity and on behalf of the Orly Genger 1993 Trust (both in its 109749/2009 001 through 006 individual capacity and on behalf of D & K Limited Partnership), Plaintiff, DECISION AND ORDER against DALIA GENGER, SAGI GENGER, D & K GP LLC, and TPR INVESTMENT ASSOCIATES, INC., Defendants. --------------------------------------------------------------------)( For the Plaintiff: Zeichner Ellman & Krause LLP 575 Lexington Avenue New York, NY 10022 (212) 223-0400 For Dalia Genger: Pedowitz & Meister LLP 1501 Broadway New York, NY 10036 (212) 403-7330 For D&K GP, LLC: Finkelstein Newman Ferrara LLP 225 Broadway New York, NY 10007 For McL 260 New (212 Lyon McGovern, LLP The ennessy House 16 N w Broadway Slee y Hollow, NY 10591 (914 631-1336 E-filed papers considered in review of this motion brought by order to sho motions for summary judgment, and motion to amend: Seq. No. 001 Seq. No. 002 Seq. No. 003 Seq. No. 004 Seq. No. 005 Seq. No. 006 agi Genger: ughlin & Stern, LLP adison Avenue ork, NY 10016 448-1100 cause for a preliminary injunction, Papers: Order to Show Cause & TRO, Exhibits, Memo of Law in Suppo Affidavit & Affirmation in Opposition, Exhibits, Memo of Law Affidavit & Affirmation in Opposition, Memo of Law, Exhibit Notice of Motion, Affirmations, Exhibits Pl.'s Omnibus Memo. of Law in Opp. Reply Memo of Law (Dalia Genger) Reply Memo of Law Notice of Motion, Affirmation, Exhibits, Memo of Law Pl.'s Omnibus Memo. of Law in Opp. Memo of Law in Reply, Affirmation, Exhibit Reply Affirmation, Exhibits, Memo of Law Notice of Motion, Affirmation, Memo of Law, Exhibits Pl.'s Omnibus Memo. of Law in Opp. Notice of Motion, Affirmation, Memo of Law, Exhibits Pl.'s Omnibus Memo. of Law in Opp. E-File Number: 6, 7, 7-1, 9 35, 35-1 - 35-8, 36, 37 38, 39, 40, 40-1 Notice of Motion, Affirmation, Exhibits 45, 46, 46-1 - 46-7 Affirmation in Opp., Memo of Law, Exhibits 47, 48, 48-1 - 48-2 1 12, 13, 13-1 - 13-6, 18, 18-1 - 18-9 52 61 65 15, 16, 16-1 - 16-9, 19 52,53 59, 60, 60-1 62, 62-1, 64 20, 21, 22, 22-1 - 22-8 52,54 27, 28, 29, 29-1 52,55 [* 3] Affirmation in Reply & Opp Affirmation in Opposition Memo of Law in Reply Affirmation in Opposition, Memo of Law, Exhibits Memo of Law in Reply 49 50 51 56, 57, 57-1 - 57-2 58 Transcript of Oral Argument 69 PAUL G. FEINMAN, J.: The motions bearing sequence numbers 001 through 006 are consolidated for the purpose of decision. In motion sequence number 001, plaintiff moves by orde to show cause for a preliminary injunction and a temporary order restraining defend nts from removing from the State or otherwise disturbing shares of D&K Limited Partnershi 's 48 percent ownership interest in the common stock of TPR Investment Associates, until there s a judicial determination as to who owns these closely held family shares. 1 At oral argument, t e court continued the TRO pending determination of these motions. In motion sequence numbers 002 through 005, each oft e defendants originally moved to dismiss the complaint on various grounds. By interim order ated October 21, 2009, these motions were converted pursuant to CPLR 3211 ( c) to motions for summary judgment (Doc. 41, 42, 43, 44). 2 In motion sequence number 006, plaintiff moves for lea e to amend the complaint and submits a proposed amended verified complaint containing addi ional allegations and naming an additional defendant. 1 Under the terms of the original TRO signed at the time of the s'gning of the Order to Show Cause, defendants and their agents are stayed from removing or disposing in any manner the shares at issue. Plaintiff was directed to provide an undertakin in the amount of $150,000. Documents and exhibits are referred herein by their designated -filing document number in the New York State Court's E-Filing System. 2 2 [* 4] All the motions are opposed. For the reasons set forth below, the motion for a prelimi ary injunction is granted; the motions by defendants for summary judgment are each granted ·n part and otherwise denied, and the motion to amend the complaint is granted to the extent indic ted. Background The litigants are members of a nuclear family and certai of their family-owned corporations and companies. The central issue concerns the int nt behind the signing of a promissory note and pledge agreement in December 1993, exec ted as part of estate planning tools of the parents of plaintiff Orly Genger and her brother, Sa i Genger, one of the defendants. Plaintiff contends that the note and pledge agreement were part fan entire estate planning scheme by which plaintiffs father, Arie Genger, and plaintiffs other Dalia Genger, planned to provide for their two children, plaintiff and defendant Sagi Gen er, with the greatest amount of funding possible and with minimum tax consequences. Arie an Dalia Genger were divorced in 2004 and the gravamen of this complaint is that in the years foll wing the divorce, plaintiffs mother and brother have deliberately not adhered to the intent b hind the promissory note and pledge, and have schemed to seize control of some of the famil 's closely held companies. Their schemes have been to the detriment of one of the entities, he D&K Limited Partnership, an entity partially owned by the Orly Genger 1993 Trust, and fo the benefit of Sagi Genger and for defendant TPR Investment Associates, on which Sagi and D lia Genger serve as the directors, and of which Sagi Genger is chief executive officer. mong the other relief sought by plaintiff is an injunction restraining further actions that would i eparably harm D&K Ltd. Partnership's ability to recover its interest in the shares originall held by it, that defendants be denied any ability to further erode the holdings of the Orly Gen er 1993 Trust, and that shares 3 [* 5] already sold be returned to the ownership of the Ltd. Partnershi Plaintiff argues, and none of the defendants dispute her, hat as beneficiary of the Orly Genger 1993 Trust; she has a right to assert causes of action on ehalf of the trust, citing Velez v Feinstein, 87 AD2d 309 (1st Dept. 1982) (where trustee has fail d to enforce a claim on behalf of the trust, the beneficiary may do so). She further argues that as he Orly Genger 1993 Trust is a limited partner of D&K Ltd. Partnership, she has the right to ass rt causes of action on behalf of the Partnership as against TPR Investment and the other defend nts, citing among other cases, CCG Assoc. Iv Riverside Assoc., 157 AD2d 435, 442 (1st Dept. 1990) ("[t]he right of a limited partner to bring an action on behalf of the partnership to enforce a right belonging to the partnership is beyond dispute") (Pl Memo of Law [Doc. 9:4] p. n. 1). 3 Defendants' arguments in opposition are not persuasive. According to the verified complaint (Doc. 7-1 ), plaintiff d her brother Sagi are individually beneficiaries of irrevocable trusts established in 19 3 by their parents. Each trust was funded with a $600,000 gift. As established, the Orly Geng r Trust and the Sagi Genger Trust together owned 96 percent in defendant D&K Ltd. Partner hip, a family-owned limited partnership. Dalia Genger held the remaining four percent inter st, and acted as the general manager. Defendant TPR Investment Associates, Inc. is a corpo ation founded by plaintiffs father, Arie Genger who originally was the sole shareholder, an serves as a holding company for the family's interests. Sagi Genger is presently Chief Execu ive Officer and a member of the board. Prior to 1993, TPR Investment held a majority interest i non-party Trans-Resources, Unless otherwise noted, all factual allegations are taken from pl intiff s verified complaint (Doc. 7-1). 3 4 [* 6] Inc., a closely held private corporation. 4 Around the time the two trusts were funded inl 993, D& Ltd. Partnership purchased 240 shares of common stock, comprising 49 percent of all shares, in TPR Investment for $10,200,000. The Orly and Sagi Trusts each paid $600,000, D lia Genger paid $50,000, and D&K Ltd. Partnership executed a promissory note dated Decem er 21, 1993 for $8,950,000, in satisfaction of the balance (Ver. Compl. [Doc. 7-1] if 16, citing ttached Ex. 1 [eFile Doc. 7-1 :49 et seq.]). The note was signed by Dalia Genger as General Part er ofD&K Ltd. Partnership. The note required that D&K Ltd. Partnership repay principal an accrued interest in annual installments over a ten-year period. Both trusts, and Dalia Gen er, assumed proportional liability for repayment. The note was secured with a Pledge Ag eement dated December 21, 1993, signed by Dalia Genger, in which D&K Ltd. Partnership ledged its 240 TPR Investment shares as collateral for repayment of the note (Ver. Compl. [Do . 7-1] if 18) According to the September 6, 2007, testimony of Sagi Genger in the arbitration roceeding concerning his parents' divorce, the purpose of the note was "[e]ssentially an e tate planning tool, to transfer wealth," with the intent to minimize taxes owed by the family Genger EBT, pp. 366, 368]). As a result of the purchase by D& embers (Doc. 46-5:150-152 [S. Ltd. Partnership of TPR Investment stock, the Orly and Sagi trusts each acquired 23.52 rcent indirect interest in TPR Investment, and Dalia acquired a 1.96 percent indirect interest. rie Genger retained 51 percent ownership. As alleged in the complaint, each member of the family nderstood and agreed, in the Trans-Resources is the parent company of several subsidiaries t at provide growers with specialty fertilizer and industrial chemicals, and is one of the tw largest produces of potassium nitrate in the world (Ver. Compl. [Doc. 7-1] if 12). 4 5 [* 7] "desire to ensure equal wealth transfer to Sagi and Orly and wit the estate-planning purposes underlying the creation of the Trusts and D&K [Ltd. Partnershi J's purchase of the TPR shares," that the note and Pledge Agreement "would never be enforced b any of them" (Ver. Compl. [Doc. 7-1] ~ 20). Sagi in particular was charged with ensuring hat the promissory note and Pledge Agreement would not be enforced and, in the first years, took "specific steps to fulfill that charge," an example of which follows here (Ver. Compl. [ oc. 7-1] ~ 20). D&K Ltd. Partnership made payments on the note until 999 and then ceased. In November 2002, TPR Investment sent a letter to D&K Ltd. Part ership seeking payment of the past due principal and interest (Doc. 29-1:77-78]). Sagi Genger TPR' s CEO, explained during his testimony in the above-mentioned arbitration proceeding th this November 2002 letter was merely "pro forma," and that there was no intent to collect on th note (Doc. 46-5: 153 [S. Genger EBT, p. 370]). In October 2004, Dalia and Arie Genger were divorced, esulting in certain changes to the ownership of certain family entities, memorialized in the Sti ulation and Agreement of Settlement, dated October 26, 2004 (Ver. Compl. [Doc. 7-1] ~ 2 , citing Ex. 2 [Doc. 7-1 :66 et seq.]). In particular, Dalia received sole ownership of Arie Gen er's 250 shares of TPR Investment, the Trans-Resources shares were redistributed such hat Dalia Genger owned no shares in that company, and Arie Genger was granted a lifetime oting proxy over the family Trans-Resources shares (Stipulation pp. 5, 8-14 [Doc. 7-1:71, 7 -80]). The Stipulation and Agreement of Settlement gave Sagi Genger "full and complete uthority" to sell non-liquid assets and distribute them as he saw fit, subject to his fiduciary uties to effectuate the intent of the parties entering the Agreement (Stipulation p. 7 [Doc. 7-1 :7 ]). However, the net proceeds were to be distributed so as to minimally fund a "basic escrow a count" after which monies were 6 [* 8] to go to TPR Investment "in satisfaction of the parties' indebted ess" (Stipulation p. 8 [Doc. 71:74]). Despite the changes, both the Orly and Sagi trusts conti ued to have equal ownership interests in Trans-Resources shares as well as in the TPR Invest ent shares owned by D&K Ltd. Partnership (Ver. Compl. [Doc. 7-1] ~ 23). Also on October 26, 2004, TPR Investment, Arie Genge , and Dalia Genger signed an Assumption Agreement which acknowledged the promissory n te's existence and noted that at that juncture, approximately $9,980,000, inclusive of interest, as owed by D&K Ltd. Partnership to TPR Investment (Doc. 22-4). In addition, also on the same date, Sagi and Dalia Genge formed D&K GP LLC to serve as the general partner for D&K Ltd. Partnership (Pl. Mot. 001, x. 5 ~ 5 [Doc. 7-1:151]). Under the agreement, Dalia Genger transferred her general partnership interest in D&K Ltd. Partnership, in exchange for a 99 percent interest in D&K GP; agi Genger was granted power to select the manager. Accordingly, D&K GP LLC now held a our percent interest in D&K Ltd. Partnership. Plaintiff alleges that in the years subsequent to the divor e, Dalia Genger has sought, in collusion with her son Sagi Genger, to "destroy" her former hus and financially, and their actions have threatened to destroy plaintiff financially as well ( er. Compl. [Doc. 7-1] ~ 25). Thus, when Dalia in effect ceded her control over D&K Ltd. Pa nership to Sagi, the restructuring left only the two trusts liable to TPR Investment fl r repayment of the promissory note (Ver. Compl.[Doc. 7-1] if 27). In August 2006, Sagi Geng r on behalf of TPR Investment, 7 [* 9] assigned the promissory note to David Pames, 5 but stated in wri ing to Parnes that "D&K LP and its partners have a variety of claims against TPR, and deny the nforceability of the Note." (Ver. Compl. [Doc. 7-1] if 4 7, citing Ex. 8 [Doc. 7-1: l 79-et seq.]). I 2007, Sagi Genger allegedly stripped Dalia Genger of her majority interest in TPR Investme t by selling an interest to his mother-in-law, Rochelle Fang (Ver. Compl. [Doc. 7-1] if 32). I late 2007 or early 2008, Dalia Genger divested herself of the balance of her TPR Investments ares, leaving Sagi Genger in direct control ofTPR Investment and its interest in the promiss ry note (Ver. Compl. [Doc. 7-1] if 33). As a result, Sagi Genger in essence now wore two hats, a CEO of TPR Investment, the creditor of the note, and as manager of D&K Ltd. Partnership, t e debtor on the note (Ver. Compl. [Doc. 7-1] if 34). In November 2007, Sagi Genger and Leah Fang execute an "Amended and Restated Limited Partnership Agreement of D&K Limited Partnership," ermitting D&K GP to "mortgage, hypothecate, pledge, create a security interest in or l' n upon, or otherwise encumber the L[imited] P[artner] TRI Interests, for the benefit of the Partn rship (Doc. 46-5:218). The document was signed by Sagi Genger, managing member of D K GP LLC, the General Partner, and Leah Fang, as sole trustee for both the Sagi Genger 1993 T st and the Orly Genger 1993 Trust, the Limited Partners (Doc. 46-5:223). Plaintiff only le d of this document's existence in 2009. In January 2008, Dalia Genger was appointed successor rusjee to the Orly Genger 1993 Trust (Ver. Compl. [Doc. 7-1] if 39). She succeeded several oth r individuals, including two 5 Parnes is a former trustee of the Orly Genger 1993 Trust, the p esent trustee of the Sagi Genger 1993 Trust, an officer of TPR Investment and director of Trans- esources (Ver. Compl. [Doc. 71] if 46). Parnes testified during the arbitration proceeding that t e purpose of the transfer of the note to him was to prevent collection by any others (Id). 8 [* 10] long-term friends of her son's and her son's sister-in-law. As tr stee, Dalia has "complete control over the assets of the Orly Trust, including its ownershi interests in TPR (through D&K) and TRI" (Ver. Compl. [Doc. 7-1] ir 41). In 2008, TPR Investment, through CEO Sagi Genger, re laimed the promissory note from Parnes, and in August 2008, notified D&K Ltd. Partnershi 's general manager (Sagi Genger), that it was in default under the note and that if it failed to satisfy the full terms of the note, its shares would be sold at public auction (Ver. Compl. [D c. 7-1] ir 52, citing Ex. 10 [Doc. 7-1: 185-186]). As the payment was not made, D&K Ltd. Partn rship was informed by TPR Investment that the latter would sell the former' s 240 shares of ommon stock in TPR Investment to the highest qualified bidder on February 27, 2009 (Ver. Compl., Ex. 11 [Doc. 71: 187-188]). Notice was not provided to either of the trusts, bu was published in THE NEW YORK POST in October 2008 and again in February 2009 (Ver. ompl. [Doc. 7-1] irir 52-53, citing Ex. 12 [Doc. 7-1:189-191]). On January 31, 2009, the general partner of D&K Ltd. P rtnership, that is to say D&K GP, and the limited partners, the Sagi and Orly trusts, and TPR nvestment, memorialized a document called "Meeting of Partners of D&K LP - Jan. 31, 20 9 & Agreement," in which it was agreed that D&K GP could sign for the Limited Partnershi and for each individual partner when making the limited partners' assets subject to a pledge (D c. 22-4:17-18). 6 This same agreement included the promise of TPR Investment that it woul "refrain from enforcing the Plaintiff alleges she first learned of this agreement only when t e documents were provided as part of defendants' papers submitted in their motions to dismiss (Am. Ver. Compl.[Doc. 46-4] ir 94). 6 9 [* 11] note against each limited partner for thirty days." (Id. [Doc. 22 : 18] ~ 8). 7 The note was foreclosed upon on February 27, 2009, les than the 30 days indicated in the Agreement date, and D&K Ltd. Partnership's 240 shares of PR Investment were purchased back by TPR, decreasing the obligations of D&K Ltd. Partnersh"p under the promissory note, and leaving a balance of approximately $8 .8 million that contin es to be guaranteed by the Orly and Sagi trusts (Ver. CompI. [Doc. 7-1] ~ 57, citing Ex. 13 [Do . 7-1: 192-194]). Plaintiff and her attorney only learned in early June 2009 that the note had b n foreclosed and that the pledged shares had been sold back to the company (Ver. Compl [Doc. 7-1] ~ 65). Plaintiff has made a written demand that TPR Investment return the pledged hares to D&K Ltd. Partnership, but TPR has declined to comply (Ver. Compl. [Doc. 7-1] ~ 69, iting Ex. 20 [Doc. 7-1:225- 227]). Also in August 2008, Rochelle Fang, as trustee of the S i Genger 1993 Trust, and Sagi Genger, sold that trust's interest in Trans-Resources to another roup (named "Trump"), which sale divested Arie Genger from control and put the company in he control of the Trump group (Ver. Compl. [Doc. 7-1] ~ 60, citing Ex.14 [Doc. 7-1:195-207]). The validity of this sale is under challenge in Delaware Chancery Court, although plaintiff Orly Genger has not joined in that action (Ver. Compl. [Doc. 7-1] ~ 61). After this purported sale of the Sagi Genger Trust's shar s of Trans-Resources, plaintiff feared her trust's shares would not be protected from sale. She equested in writing from her mother as trustee in January 2009 and again in June 2009 that th Orly Genger 1993 Trust retain all of its shares of Trans-Resources and that they not be sold, bu Dalia Genger has refused to The copy of the document e-filed with the court is not clear eno gh to discern who signed on behalf of the trusts, although presumably it was Dalia Genger, o on behalf ofTPR Investment. 1 IO [* 12] agree, or even to respond (Ver. Compl. [Doc. 7-1] iii! 63, 66, cit ng Ex. 15, 16 [Doc. 7-1:208- 215]). Plaintiff, who had brought a proceeding in Surrogate's ourt to remove her mother as trustee at the time of her appointment in January 2008, an appli ation which was denied as being premature (Ver. Compl. [Doc. 7-1] iii! 39-40), brought a secon application on June 22, 2009, seeking to enjoin Dalia Genger or her agents from doing anythi g to affect the Orly Genger 1993 Trust's Trans-Resources shares, to remove Dalia as trustee and ppoint another in her stead based on breach of fiduciary duties, and for a surcharge for dam ges (Ver. Compl. [Doc. 7-1] if 67). At this juncture, the Surrogate's Court has ordered that Da ia Genger provide at least 10 days notice before disposing of any of the trust's Trans-Resourc s shares (Ver. Compl. [Doc. 7-1] if 68, citing Ex.19 [Doc. 7-1:222-224]). Plaintiff contends that Dalia Genger has failed to act in t e best interests of the Orly Genger 1993 Trust, that Sagi Genger has acted in a self-dealing armer and together with Dalia Genger has undermined the estate plans that intended for both c ildren to benefit equally from the family's wealth (Ver. Compl. [Doc. 7-1] if 58). Plaintiff fea s that through defendants' continued scheming, the Orly Genger 1993 Trust's one remaini g asset, its ownership of the Trans-Resources shares, will also be wrongly divested (Ver. Co pl. [Doc. 7-1] if 59). The verified complaint alleged 16 causes of action again t the various defendants, including replevin of the shares from TPR Investment back to &K Ltd. Partnership, and a request for a preliminary injunction. As stated above, defendants each submitted pre-answer otions to dismiss which, after notice by the Court, have been converted to motions for summ judgment pursuant to CPLR 3211 ( c). Subsequent to the filing by defendants of their motio s, plaintiff moved to amend her complaint "to address, among other things," the defendants' "sc eme regarding the Orly Trust's 11 [* 13] TRI Shares," and the involvement in the scheme of Leah Fang, e proposed additional defendant (Pl. Mot. 006, Ex. D, Part 1, Proposed First Am. Ver. Compl., [Doc. 46-4] if 95). The proposed first amended verified complaint contains an addition 1 four causes of action, two against Leah Fang, and two seeking additional declaratory relie and amends certain of the original causes of action to include the new allegations and thos against Leah Fang. Legal Analysis For convenience, the motion to amend will be addressed first, and then the preliminary injunction, followed by the motions to dismiss. Because the mo ion to amend the complaint is granted, the remainder of this decision addresses the claims as a leged in the amended complaint. A. Leave to amend pleadings is to be freely given upon ter s that may be just (CPLR 3025 [b]). In addition, CPLR 3025 (a) permits any party to amend a leading once, without court permission provided it is done under one of the following circ stances: within 20 days of the service of the original pleading; at any time before the period fo responding to it has expired, or within 20 days after the service of a responsive pleading. Plaint ff proffers a proposed amended complaint to add a new defendant and new causes of action (Do 46-4). Contrary to defendants' arguments, case law holds that here a defendant has not answered the complaint but instead interposed a motion to dism ss, as was done here, the plaintiff may amend her complaint once as of right, because de£ ndants, by making pre-answer motions, have extended their time to answer (see, Johnson v Sp nee, 286 AD2d 481 [2d Dept. 2001]; STS Mgt. Dev., Inc. v New York State Dept. of Taxation Fin., 254 AD2d 409 [2d Dept. 2001]; Miller v General Motors Corp., 99 AD2d 454 [1 51 Dept. 984], ajf'd 64 NY2d 1081 [1985]). Although defendants oppose, plaintiff is entitled to se e and file her amended 12 [* 14] complaint without review by the court, although the rulings bel won defendants' motions shall refine the scope of the proposed amended complaint and require her to file and serve a second amended complaint. Defendants' arguments in opposition, incl ding that there is another action pending, can be pled as affirmative defenses. Plaintiffs motion to amend her complaint is thus granted to the extent indicated. B. Motion for Prelimina In.unction Se uence Number 0 1 Among the purposes of a preliminary injunction are mai taining the status quo and preventing irreparable injury to a party (see, e.g., Ma v Lien, 19 AD2d 186 [1st Dept. 1993], lv dismissed 83 NY2d 847 [1994]). To prevail, the party seeking i junctive relief must demonstrate a likelihood of success on the merits; that it will su fer irreparable injury if the relief is not granted; and that the equities balance in its favor (Aetna l s. Co. v Capasso, 75 NY2d 860, 862 [ 1990]). A preliminary injunction should generally not be ranted where there are issues of fact (Lincoln Plaza Tenants Corp. v MDS Properties Dev. Corp, 169 AD2d 509 [1st Dept. 1991 ]; but see Ma v Lien, supra at 187 ["even where the facts a e in dispute, the nisi prius court can find that a plaintiff has a likelihood of success on the merits from the evidence presented"]). If money damages are an adequate remedy, irreparable harm do s not exist and injunctive relief should be denied (Sterling Fifth Assoc. v Carpentille Corp., Inc. 5 AD3d 328, 330 [1st Dept. 2004]). Plaintiff argues that the shares of Ltd. Partnership are un que chattel as contemplated by CPLR 7109, and that accordingly the court should grant a preli inary injunction restraining defendants from disposing of the shares until order of the court. She argues that the D&K Ltd. Partnership shares are unique because they are shares of a closel held family company which represents an ownership in another closely held family compan 13 TPR Investment, and that their [* 15] value is dependent, at least in part, on the outcome of the family litigation currently before the Delaware Chancery Court concerning Trans-Resources (Pl. Me o of Law, 5-6 [Doc. 9:8-9]). Under CPLR 7109, where the chattel is unique, the cou may grant a preliminary injunction or temporary restraining order that it may not be tran ferred, sold, pledged, assigned or otherwise disposed of until the court orders (CPLR 7109 [a]). Defendants argue that the shares are in essence fungible, and that if appropriate, money da ages would fully compensate plaintiff (TPR [S. Genger] Aff. in Opp. [Doc. 39] ~ 6). Sagi Ge ger avers that the "TPR shares are currently not for sale and there is no intention to sell them at this time or in the near future." (S. Genger Aff. in Opp. [Doc. 35] ~ 5]). He makes no statemen s concerning the TRI shares. Plaintiffs argument, however, is that her parents never meant fi r the promissory note to be enforced, but rather that the trust funds remain intact for the two children. The recent actions taken by defendants concerning the promissory note which have negatively impacted the Orly Genger 1993 Trust, and the sale of the Trans-Resources shares elonging to the Sagi Genger 1993 Trust, possibly foretell defendants' plans to sell her trust's shares of Trans-Resources and thus she seeks court intervention to prevent further dissipation o the trust. The granting of a preliminary injunction is a discretion remedy (Ross v Schenectady, 259 App. Div. 774, 774 [3d Dept. 1940]; Dabrinsky v Seagate ssn., 239 NY 321 [1925]). Here, where the family shares at issue are intertwined among various mily entities, defendants have not offered sufficient evidence to show that the shares of either PR Investment or TransResources owned by the Orly Genger 1993 Trust are not "uniqu " and should not be protected from transfer, sale, or assignment until this litigation is ultimate y decided. In addition, given that defendant Sagi Genger states there is no immediate plan to ell or otherwise dispose of the TPR Investment shares, an injunction is not likely to cause muc harm to defendants. The 14 [* 16] balance of equities therefore lies in favor of plaintiff. Accordin ly, the motion for a preliminary injunction is granted. Motions or Summar Jud me t The proponent of a summary judgment motion must ma e a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient vidence to eliminate any material issues of fact from the case (Winegrad v New York Uni . Med Ctr., 64 NY2d 851, 853 [ ]). Evidentiary proof must be submitted in admissible form (Z ckerman v City ofNY, 49 NY2d 557, 562 [1980]). Parties in opposition must submit "evi entiary facts or materials, by affidavit or otherwise ... demonstrating the existence of a triabl issue of ultimate fact." (Tortorella v Carlin, 260 AD2d 201, 204 [1st Dept. 1999]). "Iss e finding and not issue resolving" is the proper role of the court in deciding such motio s (Wine grad, supra, at 853). Regardless of the sufficiency of the opposing papers, in the abs nee of admissible evidence sufficient to preclude any material issue of fact, summary judg ent is unavailable (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). None of the converted motions for summary judgment c ntains first-person affidavits, and all rely upon documentary evidence and the pleadings for t bases of their motions. Although plaintiff objects to the lack of first-person affidavits, t e converted motions are nonetheless considered by the court and decided on their merits. Plaintiff argues that all of the motions should be preemp ively denied based on the doctrines of issue preclusion and judicial estoppel, pointing to t e testimony and evidence presented at the arbitration which resulted in the May 6, 2008, a ard entitled Dalia Genger v Arie Genger, Case No. 13 170 Y 00996 07 (American Arbitrati n Assn., Commercial Arbitration Tribunal, NYC). (Doc. 46-5: 131 et seq.]). The doc rine of issue preclusion serves 15 [* 17] to bar a party from "relitigating in a subsequent action or procee ing an issue that was raised in a prior action or proceeding and decided against that party or thos in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Te . Co., 62 NY2d 494, 500 [1984]; see also, Parker v Blauvelt Volunteer Fire Co., 93 NY2 343, 349 [1999]). The doctrine of judicial estoppel prohibits a party that has assumed a certain osition in a prior legal proceeding and secured a judgment in its favor, from assuming contrary position in another action simply because the party's interests have changed (City o N. Y v College Point Sports Assn., Inc., 61AD3d33, 44 n. 1 [2d Dept. 2009], citations omit ed). Notably, of course, the arbitration concerned issues arising from the divorce of plaintif s parents, and determined, among other questions, that the promissory note could not be en orced by either parent as against each other. This is not the issue raised by plaintiff in her litigati n. Additionally, because the testimony by Sagi Genger, Dalia Genger, and others in that arbi ation was offered to answer the questions of whether the note was enforceable, and its value, as etween the former husband and wife, the witnesses and parties did not address the value or enfo ceability of the note as between the children of Arie and Dalia Genger, or the family owned com anies. Thus, the testimony adduced in the arbitration may well be admissible in this action, but there is no collateral estoppel effect. C. Dalia Gen er's Motion for Summa The first amended verified complaint alleges three cause of action against Dalia Genger: breach of fiduciary duty (!51 cause of action), fraud (5 1h cause of ction), and conspiracy to commit fraud (8th cause of action). As argued by defendant, the claim of breach of fiduciary duty is also at issue in a proceeding currently before the Surrogate's Court entitled In the Matter of the Application of 16 [* 18] Orly Genger, as a person interested, for the removal of Dalia nger as Trustee of the Orly Genger 1993 Trust pursuant to SCPA § 711 (I), File No. 17/20 8 (Surrogate's Court NY County). Plaintiff does not address this argument. Accordingly in the interest of judicial economy, the branch of defendant's motion seeking summary j dgment and dismissal as to the complaint's 1st cause of action, is granted, on the ground that th same claim is pending in another court proceeding (CPLR 3211 [a] [4]). The 5th Cause of Action sounds in fraud, while the 81h C use of Action alleges conspiracy to commit fraud among the four defendants. As an initial matt r, it is well established that "a mere conspiracy to commit a fraud is never of itself a cause of a tion," although allegations of conspiracy are permitted to connect the actions of separate defe dants with an otherwise actionable tort (Alexander & Alexander of NY Inc. v Fritzen, 6 NY2d 968, 969 [1986] [citation omitted]). As explained in Brackett v Griswold, "[t]he allegatio that there was a conspiracy to commit the fraud does not effect the substantial ground of actio ," and "[t]he gravamen is fraud and damage, and not the conspiracy." (112 NY 454, 466-467 [1 89]). "The allegation and proof of a conspiracy in an action of this character is only important t connect a defendant with the transaction and to charge him [sic] with the acts and declaration of his [sic] co-conspirators, where otherwise he [sic] could not have been implicated." (Id.). Accordingly, the 81h cause of action is dismissed as against this defendant, and the others. To state a claim for fraud, plaintiff must allege "a materi I misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable eliance ... and damages" (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553 559 [2009]). In addition, under CPLR 3016 (b ), the circumstances constituting the wrong must e stated in detail. Defendant Dalia Genger argues that plaintiffs claims a 17 unspecific and general in [* 19] nature. In particular, she argues that there is no allegation of th manner in which plaintiff relied on any of her statements, or in what manner she, defendant, cou d have prevented the enforcement of the promissory note and the foreclosure sale. A though plaintiff argues in opposition that Dalia Genger made many statements over the ye s, including sworn statements, affirming that all interested parties to the note had agreed that T R Investment would never seek to enforce the promissory note (Am. Ver. Compl. [Doc. 46-4] ~ 62, 145-147), none of defendant's statements explicitly make this assertion other than n the context of the divorce proceedings. However, plaintiff also argues that even after she equested that her mother, as trustee, not encumber the remaining assets of the trust, her moth r signed the January 2009 Meeting Agreement which gave power to D&K GP - the comp y controlled by Dalia and Sagi Genger - to pledge the Orly Genger 1993 Trust's shares of Tran -Resources as security for the promissory note, and which indemnified Sagi Genger, among ot ers. There are also the transactions over the years that apparently have given Sagi Gen er, and Dalia Genger, potential control over family assets in a way that has harmed plaintiffs s are. When claiming that the defendants together acted to co mit a fraud, the plaintiff need not allege and prove that each defendant committed every elem t of fraud but only facts which support an inference that the defendants knowingly agreed to co perate in a fraudulent scheme (Snyder v Puente De Brooklyn Realty Corp, 297 AD2d 432, 435 [3d Dept.2002], lv denied, 99 NY2d 506 [2003]; LeFebre v New York Life Ins. & Ann. Corp., 14 AD2d 911, 912 [3d Dept. 1995]). Plaintiff alleges that the various defendants together co mitted fraud by, for example, creating the conditions that resulted in the "sham sale" of the T R Investment assets owed by D&K Ltd. Partnership, and agreeing in the January 2009 Meeti g Agreement to give power to D&K GP, the company controlled by Dalia and Sagi, to pledge t e Orly Trust's shares of Trans18 [* 20] Resources as security for the promissory note (Am. Ver. Compl [Doc. 46-4] ~~ 76-68, 151). Plaintiff asked repeatedly for information about her trust, but be ause defendant has not been forthcoming nor kept her informed, she did not know that there as any need to attempt to protect the assets of her trust. The evidence and arguments provided by both parties sh w that there is a question of fact as to whether Dalia Genger acted with intent to commit fraud a ainst plaintiffs trust, and to lull plaintiff into a false sense of security as to the status of her trust Accordingly, the branch of defendant's motion to dismiss the 5th cause of action is denied. uence Number 003 D. Defendant Sagi Genger seeks summary judgment and di missal of the 61\ 71\ 81\ and 16th causes of action. 8 The 6th cause of action sounds in fraud. The elements o fraud are set out above in the discussion of Dalia Genger' s motion. The complaint focuses o the statements made by defendant in particular during the 2007 - 2008 arbitration proce ding, which helped form the basis for the arbitrator's decision that the parties never intended for the note to be collected and that it was not an asset to be valued, statements of which the pla ntiff was aware and which caused her to believe that her trust fund was secure and that no ne would enforce the note. The 7th cause of action alleges aiding and abetting fraud. The elements of aiding and abetting fraud are that there exists a fraud, the defendant knew o the fraud, and the defendant provided substantial assistance to advance the fraud's commissi n (M&T Bank Corp. v Gemstone CDO VIL Ltd., 23 Misc. 3d 1105A; 881NYS2d364, 2009 NY Slip Op 50590(U) He does not seek summary judgment as to the 2nd, 3rd, or 41h cau es of action, in which he is also named. 8 19 [* 21] {Sup. Ct., Erie County 2009], aff'd in part, mod in part, 68 AD d 17 47 [4th Dept. 2009], quotation and citation omitted). The complaint contends that d fondant and D&K GP knowingly assisted in the "sham sale" of the D&K Ltd. Partnership shares, ailed to notify the Partnership members of the foreclosure and sale, the sale of which harmed t e Orly Trust, and entered into the Meeting Agreement which now allows defendant and D&K P to pledge or encumber the Trans-Resources shares owned by the Orly Genger 1993 Trust. Defendant argues that summary judgment is appropriate based on the documentary evidence. He contends that prior to this litigation, plaintiff neve claimed that the note or pledge agreement were invalid. Among the evidence he points to in ar uing the note's enforceability, is testimony of Arie Genger acknowledging that payments were m de by D&K Ltd. Partnership on the promissory note (Doc. 16-4:3-4]), the Assumption Agreem nt signed by Dalia, Arie, and Sagi Genger on October 25, 2004, acknowledging the nearly $1 ,000,000 due under the note (Doc. 16-6]), the November 19, 2008 letter from plaintiffs cou sel to the Surrogate, stating in part that "D&K [Ltd. Partnership] is indebted on a multi-millio dollar note to TPR, which is secured by D&K's 49% stock interest, and which has not beens rviced for years" (Doc. 16-8]), and a document signed by plaintiff dated December 27, 2007, i which she states that the trust "is indebted in the amount of approximately $4.5 million" (Doc 16-9]). Defendant also argues that the statute of frauds bars plai tiffs 6th and 7th causes of action because plaintiff claims that the promissory note has been orall modified. General Obligations Law§ 5-701 requires that agreements which by their terms are ot to be performed within one year, or which are promises to answer for the debt or default of other person, must be in writing and subscribed by the party to be charged therewith (G L § 5-7-1 [a] [1]-[2]). The parol evidence rule of the General Obligations Law provides that whe e a written agreement contains 20 [* 22] a provision stating that it cannot be changed orally, then such a ocument cannot be changed by executory agreement unless it is in writing, signed by the party gainst whom enforcement of the change is sought (GOL § 15-301 [1 ]). Thus, defendant argues t at plaintiff cannot claim that the parties legally agreed, orally, that the note would not be enforce ble. Defendant's arguments are unpersuasive. Courts have a so found, specifically in regard to promissory notes, that when parties contest whether a notice ·s enforceable, there is an issue of fact that survives summary judgment and the statute of fraud will not prevent the court's examination of parol evidence on the issue. For example, in Gr enleafv Lachman, the Court examined a promissory note allegedly executed so as to avoid n gative income tax treatment, and found an exception to the parol evidence rule in order to all w admission of parol evidence, not to vary the terms of the writing, but to show that a "writing, !though purporting to be a contract, is, in fact, no contract at all." (216 AD2d 65, 66 [151 D pt.1995], Iv denied 88 NY2d 802 [1996]). Similarly, in Dayan v Yurkowski, the Court denied su mary judgment and held that the defendant's parol evidence should be considered to show th t the note, while valid on its face, was not intended to take effect (238 AD2d 541 [2d Dep't 1 97]; see also, Paolangeli v Cowles, 208 AD2d 1174, 1175 [3d Dep't 1994]). Here, where plaintiff and all the defendants copiously ci e to factual support, a material issue of fact exists regarding the intention of the note's enforce ility. While the documents speak for themselves, plaintiff raises material questions of fact oncerning the actual intent behind the promissory note. She argues that the promissory note's purpose was to facilitate the estate planning of Arie Genger and the transfer of funds betwee the family members with lessened tax cons,equences. Indeed, it is curious that interest pa ments were made by the Partnership for several years and then ceased, and that Sagi Gen er testified that TPR 21 [* 23] Investment's 2002 notice was "pro forma" and not meant as an ctual request that payment be made. It could be found that enforcement of the note's terms w sonly made after Sagi Genger allegedly came into control of both TPR Investment and D&K td. Partnership. Given the testimonial evidence in particular, there is a question of fact as o whether the promissory note was intended to be an enforceable agreement, and it would be p emature to apply a Statute of Frauds analysis to the cause of action. In addition, as plaintiff s established that there are questions of fact as to whether defendant acted with intent to de raud plaintiff and D&K Ltd. Partnership and provided substantial assistance to D&K GP in articular to advance the fraud's commission, the branch of the motion seeking summary judgm nt and dismissal of the 6th and 7th causes of action is denied. The 8th cause of action alleges conspiracy to commit fra d. For the same reasons set forth above in discussing Dalia Genger's motion, this branch of defendant's motion is granted. The 16th cause of action alleges promissory estoppel. T is is an equitable cause of action and must allege "a clear and unambiguous promise by defendan s upon which [the plaintiff] reasonably and foreseeably relied to [plaintiffs] detriment." (4 1 Hotel, L.P. v MTI!The Image Group, Inc., 251 AD2d 125, 126 [1st Dept. 1998]). Here, plaint ff alleges that it was the promise and intent of Arie Genger and the family as a whole, that the pr missory note was not to be enforced, so as to preserve the trust accounts, and that she relie on that promise these many years only to learn that one of the main assets of her trust accou t had been sold in violation of the promise. Defendant argues not only that the documents stat otherwise, but that plaintiff may not assert promissory estoppel in order to avoid the affirma ive defense of the statute of frauds, citing Cohen v Brown, Harris, Stevens, Inc., 64 NY2d 7 8 (1984), and Lowinger v Lowinger, 287 AD2d 39, 45 (1st Dept. 2001), Iv denied 98 NY2 605 (2002). 22 [* 24] While the assertion of the statute of frauds is often suffic ·ent to cause a dismissal of a claim of promissory estoppel, exceptions include where "the cir umstances are such as to render it unconscionable to deny" the promise upon which the plaintiff as relied (see, Philo Smith & Co. v. USLJFE Corp., 554 F.2d 34, 36 [2d Cir. N.Y. 1977]). H re, where there are questions of fact as to whether defendants intentionally breached the family greement concerning the entirety of the estate planning and unconscionably caused plaint ff to lose a significant amount of her trust funds to their benefit, with the possibility of losing a 1 of the funds, defendant has not established entitlement to summary judgment and dismissal oft e claim of promissory estoppel notwithstanding his defense of the statute of frauds (see, Swerd off v Mobil Oil Corp., 74 AD2d 258, 261 [2d Dep't 1980], app denied 50 NY2d 913 [1980]). A cordingly, defendant's motion for summary judgment and dismissal of the 16th cause of action s denied. E. D&K GP's Motion for Partial Summ Defendant D&K GP seeks summary judgment and dism· ssal of "all" the causes of action of the complaint as against it, but its motion papers specifically ddresses only the 4t\ 6th, 71\ and 8th causes of action. 9 As an initial issue, D&K GP argues that plaintiff, "in he capacity as beneficiary under the Orly Trust and in the Orly Trust's capacity as limited partne in D&K LP, agreed not to bring an action against D&K GP." (Lyons {D&K GP} Aff. [Doc. 21] ~ 5). Specifically, defendant points to the "Amended and Restated Limited Partnership Agre ment ofD&K Limited Partnership," in which Leah Fang as trustee for both the Orly an Sagi trusts, agreed that the trusts expressly waived their right to bring an action against D& GP, the General Partner; Sagi D&K GP did not seek summary judgment as against the 2nd or rd causes of action, in which it is also named as a defendant. 9 23 [* 25] Genger signed on behalf of D&K GP (Doc. 22-8). Accordingly, D&K GP argues that summary judgment and dismissal of the claims against it should be dismissed in their entirety. However, this agreement provides that its partners, which include the Orly Genger 1993 Trust, may sue for "fraud, bad faith, or willful misconduct." (Doc. 22-8 :5). Plainti f alleges that there has been bad faith and fraud by various family entities as concerns the enforc ment of the promissory note, and including various documents signed on behalf of the Genge trusts, as well as D&K Ltd. Partnership. At the very least, there appear to be irregularities. ummary judgment and dismissal on this ground is not appropriate. The 4th cause of action, brought by the Orly Genger 199 Trust and D&K Ltd. Partnership against both defendant D&K GP and Sagi Genger, aims defendants prevented the Ltd. Partnership from honoring its obligations under the note, a d that it tortiously interfered with the contract. Tortious interference with contractual relations consists f four elements: a contract between plaintiff and a third party; the defendant's knowledge o the contract; the defendant's intentional inducement of the third party to breach or otherwise ender performance impossible; and resulting damages to plaintiff (Kronos, Inc. v AVX Corp., 8 NY2d 90, 94 [1993], citation omitted). Defendant argues that, as the general partner to D&K Ltd. Partnership, it is a party to the contract at issue, that it, too, has also been injured by the no payment and resulting foreclosure, and that a party to a contract cannot tortiously inter ere with the contract (Def. Memo of Law§ IV [Doc. 22: 12]). Plaintiff argues that accordi g to Sagi Genger's testimony during the arbitration proceeding, Dalia Genger had repaid her ur percent interest in the promissory note, and that therefore D&K GP was not a party to he agreement. Here, the contract is the promissory note between D&K td. Partnership and TPR 24 [* 26] Investment. Defendant D&K GP knew of the contract, but was lso the general partner of the Limited Partnership from 2004 onward, and thus is understood o be a party to the contract. This is because the management of the property and the busines of the partnership are vested exclusively in the general partners (Durant v Abendroth, 97 NY 132, 144 [1884]). By law, a general partner in a limited partnership is subject to all the restri tions and liabilities of a partner in a partnership without limited partners, although it may not u ertake certain actions without the written consent of the limited partners, as defined in the stat te (Limited Partnerships§ 98). Thus, plaintiffs argument that Dalia Genger had repaid the inte est she owed on the promissory note, does not divest defendant of its rights and duties as genera partner. Accordingly, as it was the general partner of D&K Ltd. Partnership, no claim of tortio s interference with the contract may lie. Summary judgment and dismissal of the 4th cause of ac ion against defendant is granted. The 6th and 7th causes of action are fraud, and aiding and abetting fraud. The elements of both causes of action have been previously set forth. There are uestions of material fact as to whether defendant engaged in fraud and in aiding and abetting aud, and accordingly the branch of defendant's motion for summary dismissal of these two caus s of action is denied. The branch of the motion to dismiss the 8th cause of acti n, claiming conspiracy to commit fraud, is granted, for the reasons stated previously as co cems the other defendants. F. TPR's Motion for Summa Jud ment motion se uence no. 005 Defendant TPR moves for summary judgment and dism'ssal of the gth, 9th, 10th, 11th, 12th, 13th, 14t\ 15th, and 16th causes of action as against it. In sum, it rgues that the documentary evidence establishes that there are no material questions of fact hat would preclude a grant of summary judgment and dismissal of the complaint as against it. The branch of the motion to dismiss the 81h cause of acti n, alleging conspiracy to 25 [* 27] commit fraud, is granted for the reasons set forth above concerni g the other defendants. The 9th cause of action seeks declaratory relief and <lama es pursuant to NY UCC §§ 9627, 610, and 611-614, as concerns the notice of foreclosure an the sale. UCC § 9-610 provides that every aspect of the disposition of collateral after a efault must be commercially reasonable. UCC § 9-611 ( c) (2) provides that before the dispo ition of collateral, the secured party shall send an authenticated notification of disposition to" y secondary obligor." UCC § 9-612 (b) provides that for a non-consumer transaction, 10 days s sufficient notice before the disposition. UCC § 9-613 (a) (4) requires that for the notificati n of disposition to be sufficient, it must include a statement that the debtor is entitled to an acco ting of the unpaid indebtedness and the charge, if any, for an accounting. UCC § 9-613 (a) (5) r quires that for the notification of disposition to be sufficient, it must state the time and place o the public disposition or the time after which any other disposition is to be made. UCC § 9-6 7 provides that simply because a greater amount could have been obtained is not in itself suffic' ent to preclude the secured party from establishing that the disposition was made in a commercia ly reasonable manner, and describes what are commercially reasonable dispositions. The complaint alleges that TPR Investment failed to pro erly notify the Orly Genger 1993 :rrust or Orly Genger of the sale of the shares ofTPR owe byD&K Ltd. Partnership, and that the notice of August 31, 2008 failed to state that D&K Ltd. Partnership is entitled to an accounting of its unpaid indebtedness, or to provide the time an place of the disposition of the collateral. In addition, the $2,200,000 sale price was only a "fr ction" of the original $10,200,000 purchase price, and failed to take into consideratio certain potential monies received from the sale of TRI shares to the Trump group. Defendant TPR Investment argues that it fully complied with the UCC requirements 26 [* 28] when noticing the default and conducting the foreclosure sale. I addition, it argues that even if it could be found that plaintiff never received notice of the defa lt and sale, she has not alleged that she suffered redressable damages, as she makes only a gene alized statement that the shares sold for a fraction of their original purchase price (Def. Memo o Law [Doc.29] p. 8, citing Ver. Compl. [Doc. 7-1] ir 146]). It also argues that plaintiff does not offer any evidence as to what the fair market value of the TPR Investment shares might have bee and, as stated explicitly in the statute, an enforcement will not be found commercially unviabl simply because a greater amount could have been obtained (UCC § 9-627 [a]). An examination of the notice shows that certain of the c mplaint' s allegations have no merit but that others are meritorious (Def. Memo of Law [Doc. 9] p. 7, citing Ex. K [Doc. 291: 136]). The notice is riot addressed to either of the limited p ers, the Orly or Sagi Genger trusts, who as guarantors, are secondary obligors, and there is n proof of service provided by defendant establishing notification. The notice indicates that th date of the sale was February 27, 2009, but does not indicate the date of the notice itself, mea ing that defendant has not established that the 10-day rule was adhered to. Furthermore, g ven that the January 31, 2009, Meeting Agreement stated in paragraph 8 that TPR would wait 0 days until selling the shares, it appears that the sale on February 27, 2009 was premature in y event (see Doc. 22-4:17-18]). As for the claimed violation ofUCC § 9-627, there remain que tions of fact as to whether the sale was itself conducted in a commercially reasonable manner as set forth in the statute, whether or not the shares were sold at a value far lesser value t an their worth. However, the notice clearly indicates the date, time, and location of the sale, d also that D&K Ltd. Partnership is entitled to an accounting and includes the teleph ne number to call. Accordingly, the branch of defendant's motion seeking summary judgment a d dismissal of the 9th cause of 27 [* 29] action is granted solely to the extent that the claims seeking decl rations of violations of UCC § 9-613 (a) (4) and (a) (5), are dismissed. The remainder of the 9t cause of action remains. The 1oth cause of action alleges conversion and seeks re levin, and the 11th cause of action seeks a judgment declaring that D&K Ltd. Partnership ha a superior right to possess chattel under CPLR 7101. Conversion is when a person, witho authority, intentionally exercises control over the property of another person and interfe es with the other person's right of possession (see, Sporn v MCA Records Inc., 58 NY2d 482, 4 7 [1983]). Replevin, under Article 71 of the CPLR, is a remedy ancillary to an action to rec ver a chattel (see Sears Roebuck & Co. v Austin, 60 Misc. 2d 908, 908 [Civ. Ct., NY Co ty 1969]). Defendant argues that plaintiff does not adequately plead the elements of conversi n and thus cannot establish that replevin is appropriate, nor does she show that she is entitled in he 11th cause of action to a declaration that she has a superior right to that of defendant's in he TPR Investment shares. It argues that plaintiff does not establish that its assuming owners ip rights to the shares was unauthorized, nor does she show that D&K Ltd. Partnership or y other entity had a superior right. The claim of conversion and replevin, and the declaratio as to whose right is superior, go to the heart of plaintiffs complaint. Because, as set forth in he discussion above, there are disputed questions of fact as to the intent of the promissory note and Pledge Agreement and whether enforcement of them was ever contemplated, there can e no summary determination as to who is entitled to the shares and no declaratory relief granted t this time. Accordingly, the branches of defendant's motion for summary dismissal of the 1 th and 11th causes of action are denied. The 12th cause of action seeks a preliminary injunction t enjoin TPR Investment from in 28 [* 30] any matter disposing of the TPR shares pending a final determi ation of the declaratory judgment branch of the complaint. This cause of action is redu dant of the motion separately brought by plaintiff and opposed by defendants on grounds simi ar to those articulated by defendant in its motion for summary judgment. As the plaintif s motion for a preliminary injunction has been granted as set forth above, summary judgm nt and dismissal of this cause of action is granted. Of course, if what plaintiff is seeking is ape anent injunction, the cause of action would have to be repleaded. The 13th cause of action seeks a constructive trust on be alf ofD&K Ltd. Partnership. In equity, a constructive trust may be imposed when the movant es ablishes that there is a confidential or fiduciary relationship, a promise, a transfer in rerance thereon, and unjust enrichment (Sharp v Kosmalski, 40 NY2d 119, 121 [1976], cita ions omitted). Defendant argues that there is no relationship between it and plaintiff, perhaps ov rlooking that this claim is brought on behalf of D&K Ltd. Partnership, a minority sharehol er of TPR Investment. It is disputed as to whether TPR Investment owed a fiduciary duty o care to minority shareholder D&K Ltd. Partnership (see Alpert v 28 Williams St. Corp., 63 N 2d 557, 568 [1984] [fiduciary duty of majority to minority shareholders; Salm v Feldstein, 20 D3d 469 [2d Dept. 2005] [fiduciary duty of managing member of company and co-memb r to plaintiff]). The parties dispute, of course, whether defendant was among the entities pr mising that the promissory note would never be enforced. Defendant argues that there was no tr nsfer in reliance, however plaintiff sufficiently argues that D&K Ltd. Partnership pledged ts shares of TPR in reliance of the promise that the note would be not enforced, citing Lester v immer, 147 AD2d 340, 341342 (3d Dept. 1989), which notes that the elements of a constru tive trust are "flexible," and the "transfer" should be interpreted broadly. Whether defendant w s unjustly enriched is a matter to 29 [* 31] be determined at trial. Accordingly, as there are questions of fa t, summary judgment is denied as to the 13th cause of action. The 14th and 15th causes of action, brought on behalf oft e Orly Genger 1993 Trust, allege constructive and actual fraudulent conveyance under Ne York Debtor & Creditor Law §§ 273, 276, and 277. Section 273 of the Debtor and Creditor conveyance made ... by a person who is or will be thereby ren creditors without regard to his actual intent if the conveyance is red insolvent is fraudulent as to ade or the obligation is incurred without a fair consideration." Section 276 of the Debto & Creditor Law provides that a conveyance is actually fraudulent if it was made with actual int nt "to hinder, delay, or defraud either present or future creditors." Section 277 provides that a onveyance of partnership property made either when the partnership is insolvent or will b rendered insolvent by the conveyance, is fraudulent as to partnership creditors if the conv yance is made (a) to a partner even if there is a promise by the partner to pay partnership debt , or (b) to a non-partner without fair consideration to the partnership. None of these statutes apply to the facts here, and defen ant's motion for summary judgment and dismissal of the two causes of action must be gra ted based on failure to state a cause of action. In New York, only creditors may maintain acti ns for fraudulent conveyance (Geren v Quantum Chemical Corp., 99 F3d 401, 1995 WL 737 12, **2 [2d Cir. [NY] 1995], citing Pappa Bros. v Thompson, 214 NYS2d 13, 15 [Sup. Ct. N ssau County, 1961]). Although plaintiff argues that the Orly Genger 1993 Trust is a creditor, sh is misapplying the statute. A creditor is defined as an entity "having any claim, whether mat ed or unrnatured, liquidated or unliquidated, absolute, fixed or contingent." (Debtors & Credit rs Law§ 270). The complaint alleges that certain of the assets of the trust were wrongly conv 30 ed to defendant by the actions [* 32] of Sagi Genger. However, to establish a constructive fraudulent onveyance, plaintiff must demonstrate: (1) that there was a conveyance; (2) that the defend nt would become insolvent as a result of the conveyance; and (3) there was no fair consideratio for the conveyance (see, United States v Sweeney, 418 F. Supp. 2d 492, 498 [SDNY 200 ], citation omitted). To establish intentional fraudulent conveyance, plaintiff must show in additi n that there was actual intent "to hinder, delay, or defraud ... creditors" (Sweeney, at 498). Not nly does plaintiff not establish that she is a creditor who has a claim, but she does not allege th defendant became insolvent because of the conveyance of the TPR shares. Furthermore, she offers nothing more than the statement that the shares were bought by TPR Investment for a" raction" of their original value, to establish that there was no fair consideration. Her reliance on Debtor and Creditor Law § 277 is also misplaced, based on the facts alleged in the pleadings. A cordingly, the 14th and 15th causes of action are dismissed on summary judgment. The 16th cause of action alleges promissory estoppel on ehalf ofD&K Ltd. Partnership. Defendant's motion for summary dismissal of this cause of acti n is granted for the same reasons set forth in the discussion of the branch of Sagi Genger' motion for summary judgment and dismissal of this cause of action. Therefore, As to Motion Sequence Number 001, due deliberation h ving been had, and it appearing to this Court that a cause of action exists in favor of the plaintif and against the defendants and that the plaintiff is entitled to a preliminary injunction on the gr und that the subject of the action is unique and that the defendants threaten to do an act in iolation of the plaintiffs rights respecting the subject of the action, tending to render the judgm nt ineffectual, as set forth in the aforesaid decision, it is 31 [* 33] ORDERED that the undertaking is continued in the sum of$ 150,000.00, conditioned that the plaintiff, if it is finally determined that she was not enti led to an injunction, will pay to the defendants all damages and costs which may be sustained b reason of this injunction; and it is further ORDERED that defendants, their agents, servants, empl yees and all other persons acting under the jurisdiction, supervision and/or direction of de ndants, are enjoined and restrained, during the pendency of this action, from doing or su ering to be done, directly or through any attorney, agent, servant, employee or other person nder the supervision or control of defendant or otherwise, any of the following acts: removing t e Shares from the state, or otherwise transferring, selling, pledging, assigning, or otherwis disposing of the Shares; and it is further ORDERED that as to Motion Sequence Number 002, th motion for summary judgment by Dalia Genger is granted only to the extent of dismissing the st and 8th causes of action as against her in the first amended verified complaint, and is othe ise denied; and it is further ORDERED that as to Motion Sequence Number 003, th motion for partial summary judgment by Sagi Genger is granted only to the extent of dismis ing the 81hand 16th causes of action as against him in the first amended verified complaint, a d is otherwise denied; and it is further ORDERED that as to Motion Sequence Number 004, th motion for partial summary judgment by D&K GP is granted only to the extent of dismissin the 4th and gth causes of action against it in the first amended verified complaint, and is otherw se denied, and it is further ORDERED that as to Motion Sequence Number 005, th motion for summary judgment by TPR Investment Associates, Inc., is granted only to the exte t of dismissing the 8t\ 12t\ 141\ 32 [* 34] 15th, and 16th causes of action in their entirety as against this defi ndant, and as to the 9th cause of action, dismissing the.claims alleging violations of UCC § 9-61 (a) (4) and (a) (5); and the motion is otherwise denied; and it is further ORDERED that as to Motion Sequence Number 006, th motion to amend the complaint is granted to the extent set forth above; plaintiff shall e-file and erve a second amended complaint incorporating the limitations set forth herein, and se e it on all parties who shall then serve their answers in accordance with the CPLR; and it is forth r ORDERED that the parties shall appear for a prelimina 60 Centre Street, room 212, on September 15, 2010, at 2:15 p.m This constitutes the decision and order of the court. d. G / ~1 Dated: June 28, 2010 New York, New York (2010 Pt 12D&0_109749_2009_001 - 006_MK & JH) 33 conference in Supreme Court,

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