Auto Collection Inc. v Pinkow

[*1] Auto Collection Inc. v Pinkow 2011 NY Slip Op 51793(U) Decided on October 7, 2011 Supreme Court, Kings County Demarest, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2011
Supreme Court, Kings County

The Auto Collection Inc., et al., Plaintiffs,

against

Christopher Pinkow, et al., Defendants.



7847/09

 

Attorney for Plaintiffs:

Leo K. Barnes, Jr.

Barnes & Barnes, PC

445 Broadhollow Rd, Suite 229

Melville, NY 11747

Attorney for Defendants (US Autoland, LOV, Gleb and Oleg Sakhontchik):

S. John Bate

1444Clove Road

Staten Island, NY 10301

Carolyn E. Demarest, J.

The following papers numbered 1 to 6 read on this motion:Papers Numbered

Notice of Motion/Order to Show Cause/Petition/

Cross Motion and Affidavits(Affirmations)Annexed1

Opposing Affidavits (Affirmations)4

Reply Affidavits(Affirmations)56

Other Papers (Memoranda of Law)

(Statement of Undisputed Facts) 3

2

Defendants Gleb Sakhontchik, US Autoland LLC, Oleg Sakhontchik and LOV Motors Inc., move for summary judgment, pursuant to CPLR 3212, to dismiss the complaint.

Background[*2]

The Auto Collection Inc. ("Auto Collection") is a New York corporation licensed by the New York State Department of Motor Vehicles to operate an automobile dealership. Auto Collection is engaged in the retail sale of motor vehicles. Steven Lever ("Steven") and Joshua Lever ("Joshua") are members of Auto Collection. US Autoland LLC ("Autoland") and LOV Motors, Inc. ("LOV"), are auto exporters engaged in the business of purchasing high-end automobiles and other vehicles and re-selling them to its customers located in the former Soviet Union and Eastern Europe. They are not licensed by the New York State Department of Motor Vehicles. Gleb Sakhontchik ("Gleb") is a member of Autoland and Oleg Sakhontchik ("Oleg") is an "authorized representative" of LOV.

There are three civil actions currently pending against Auto Collection in the Kings County Supreme Court related to the present action (L & L Auto Distributors & Suppliers, Inc. v The Auto Collection, Inc., index No. 18728/08; Azte, Inc. v The Auto Collection, Inc., index No. 19999/08; US Autoland LLC v The Auto Collection Inc., index No. 16004/09) and four related civil actions against Auto Collection that have been discontinued by stipulation (Boomerang Auto, Inc. v The Auto Collection, Inc., index No. 22436/08; Oleksandr Butenko v The Auto Collection, Inc., index No. 15995/09; FT & T Consulting Inc. v The Auto Collection Inc., index No. 28329/08; Royal Auto Collection Inc. v The Auto Collection Inc., index No. 21533/08). This action was filed in Nassau County on November 25, 2008, after the seven civil actions were commenced.[FN1] A criminal action, in which a sealing order has been issued, is also currently pending in Nassau County against one of the Auto Collection's employees, defendant Christopher Pinkow ("Pinkow") (People v Pinkow and the Auto Collection Inc., Indictment No. 698/10). The court takes judicial notice that Pinkow plead guilty to a scheme to defraud in the second degree on September 21, 2011 and the sentencing is scheduled for January 5, 2012. The Auto Collection was named as a defendant in the criminal action, but its status in that action is unclear.[FN2]

All of these actions share common fact patterns and claims. Specifically, all of these actions allege that a luxury motor vehicle or several luxury motor vehicles were purchased from Auto Collection by an import-export company in the business of buying motor vehicles and reselling them for export to Russia, or an Eastern European country, that Auto Collection demanded pre-payment, the purchaser pre-paid Auto Collection, either a deposit or in full, and the motor vehicle or vehicles were never delivered to it, nor [*3]was the purchase price refunded. In each action, Auto Collection has argued that its employee, Pinkow, defrauded Auto Collection and its members without Steven or Joshua's knowledge or participation.

In the present action, Auto Collection alleges, inter alia, that the defendants created a scheme to defraud the Auto Collection through a pattern of racketeering activities.[FN3] Auto Collection alleges that their employee, Pinkow, was working for defendant Boris Kotlyarsky ("Kotlyarsky") and that Pinkow arranged for a number of the defendants to act as good faith purchasers who then wired Auto Collection money as advance payments for particular automobiles. Auto Collection alleges that once the payments were received and deposited into the Auto Collection's bank account, "Pinkow would manipulate the funds in an old-fashioned criminal pyramid and/or criminal kiting scheme" and then divert the delivery of vehicles for his own benefit or the benefit of the defendants. Auto Collection alleges that the vehicles were actually delivered to the purchasers for export to Russia and "[t]o further exacerbate the scheme, and to lend an air of credibility to the same, several defendants have filed civil actions against [Auto Collection] seeking to recover damages for breach of contract", as well as having filed complaints with the Nassau County Police Department and Nassau County District Attorney's Office, Commercial frauds and Criminal Enterprise Bureau.

The tenth cause of action of the complaint alleges that the defendants engaged in various racketeering activities including, mail fraud pursuant to 18 USC 1341, wire fraud pursuant to 18 USC 1343, and tampering with a witness or victim pursuant to 18 USC 1512. The mail fraud allegations in the complaint are raised in paragraphs 307 and 308:

307. Incident to the institution of fraudulent civil proceedings in King Supreme Court, the defendants in this second RICO enterprise, through their counsel, caused legal process to proceed to plaintiffs herein, through the US mail.

308. The mailing of legal process, through the US mail system constituted mail fraud pursuant to 18 USC 1341 in light of: (1) the scheme or artifice to defraud or obtain money [*4]by means of false pretenses and representations; (2) use of the mail for the purpose of executing the scheme; and (3) the defendants in this second RICO enterprise possessed the specific intent to defraud plaintiffs by devising, participating and/or abetting the scheme.

The wire fraud allegations in the complaint are raised in paragraphs 312 through 314:

312. Pinkow would likewise receive and render false transaction confirmations to these defendants by facsimile, including the fraudulent confirmations and acknowledgments.

313. In addition, incident to the institution of a fraudulent civil proceeding in King Supreme Court, these defendants, through their counsel, caused legal process or proceed [sic] to plaintiffs herein, through electronic mail and facsimile.

314. The sending of facsimiles through the United States interstate wiring system and by having counsel send legal process by facsimile and electronic mail constituted wire fraud pursuant to 18 USC 1343 in light of: (1) the scheme or artifice to defraud or obtain money by means of false pretenses and representations; (2) use of the wire for the purpose of executing the scheme; and (3) Boris/L & L and Pinkow possessed the specific intent to defraud plaintiffs by devising, participating and/or abetting the scheme.

The tampering with a witness or victim allegations in the complaint are raised in paragraphs 316, 318, and 320:

316. Specifically, these defendants initiated a criminal investigation against the plaintiffs with the Crimes Against Property Section of the Nassau County District Attorney's Office.

318. On the civil end, these defendants have initiated various civil actions against the plaintiffs herein as more thorough [sic] detailed earlier herein claiming monetary damages for the purported non-delivery of at least 15 vehicles. Pinkow has provided a false and fraudulent affidavit attacking the plaintiffs for the benefit of these defendants.

320. The initiation of the civil and criminal actions constitutes tampering with a witness or victim or informant pursuant to 18 USC 1512.

In support of its summary judgment motion, Gleb attests that on March 15, 2008, he went to the premises of Auto Collection and saw two vehicles that Autoland intended to purchase, a 2008 Infinity FX35 and a 2008 Lexus RX330. According to Gleb, on March 17, 2008, a check from Autoland, payable to Auto collection for $75,000, was delivered to Auto Collection and the check was deposited by Matt Rubino ("Rubino"), an employee of Auto Collection. However, in his deposition testimony, Gleb acknowledged [*5]that he never met Steven, Joshua, Rubino, Bryan Flynn ("Flynn"), an employee of Auto Collection, or Pinkow.[FN4] Defendants allege that the cars were never delivered and the money was not refunded.

Oleg attests that, on April 8, 2008, as an "authorized representative" of LOV, he delivered three checks to Auto Collection on behalf of LOV for the purchase of three cars after seeing the cars at the Auto Collection premises. The first check, for $60,000, included a description of a car ("LX 560 08"), a VIN number for a particular car, and it was signed by Oleg. The second check, for $20,000, included a description of a car ("LX 570 08") and a VIN number, but it was unsigned. The third check, for $20,000, included a description of a car ("LX 560 08") without a VIN number [FN5] and it is signed by Oleg. Oleg states that he personally delivered the checks to Auto Collection, however, it is not clear who, if anyone, from Auto Collection received these checks. All three checks were also deposited into Auto Collection's account by Rubino. Defendants claim that the cars were never delivered and the money was not refunded. These statements are identical to the allegations that form the basis of their complaint in the US Autoland v Auto Collection action ("Autoland Action").

Defendants deny that a scheme to defraud the plaintiffs ever existed. Defendants state that they did not do business with the other defendants and did not know the other defendants prior to the commencement of the actions at issue. Defendants allege that they contacted a detective in Nassau County when they learned that several weeks after the checks were delivered and deposited, the Auto Collection's place of business was closed and there were no cars in the lot. Defendants argue that "this complaint is a complete fabrication concocted by the Plaintiff's counsel as a strategy to discourage the legitimate claimants."

Defendants move for summary judgment dismissing the complaint pursuant to CPLR 3212, claiming that after an adequate time for discovery, plaintiffs cannot establish the elements essential to their claims. Further, defendants argue that the plaintiffs failed to plead a legally cognizable RICO claim, and have failed to adequately describe and cannot prove any mail or wire fraud that would constitute the predicate acts required under the RICO statute as to the defendants. Although defendants' motion is addressed to the entire complaint, the focus of the motion is the RICO claim contained in the tenth cause of action.

[*6]Discussion

In order to obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CPLR 3212 [b]). "Where the moving party has established prima facie that it is entitled to summary judgment, the party opposing the motion must demonstrate the existence of a factual issue requiring a trial of the action by admissible evidence, not mere conjecture, suspicion, or speculation" (Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632 [2d Dept 2010]). "Bare conclusory allegations are insufficient to defeat a motion for summary judgment" (Seyfried v Greenspan, 92 AD2d 563 [2d Dept 1983]). "Although hearsay evidence may be considered in opposition to a motion for summary judgment, it is by itself insufficient to defeat such a motion" (Raux v City of Utica, 59 AD3d 984, 985 [4th Dept 2009]). The parties' competing contentions are viewed in the light most favorable to the party opposing the motion (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]).

In support of the motion, defendants provided affidavits from Oleg and Gleb in which they describe the cars that were the subject of the transactions, provided proof of the payments to Auto Collection by LOV and Autoland [FN6], explained the basis for their reporting of the alleged impropriety to the Nassau County Police Department, as well as their commencement of the civil litigation, denied any prior knowledge of the other alleged participants comprising the purported "Second RICO Enterprise", noted that other defendants testified at their respective depositions that they had not done business with Oleg, Gleb, LOV, or Autoland, and denied receipt of any of the cars at issue from Auto Collection. Further, defendants argue that the plaintiffs have failed to describe any predicate acts or provide any testimony or documentary evidence that supports the allegation that defendants mailed any documents or wired anything to the plaintiffs, other than documents served in the course of the civil litigation, after nearly two years of discovery.

The plaintiffs' tenth cause of action alleges RICO violations under 18 USC 1962(c). Pursuant to 18 USC 1962(c), "[i]t shall be unlawful for any person employed by [*7]or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." The term "racketeering activity" is defined in 18 USC 1961(1)(B) as any act which is indictable under, among other statutes, 18 USC 1341 (relating to mail fraud), 18 USC 1343 (relating to wire fraud), and 18 USC 1512 (relating to tampering with a witness, victim or an informant).

"Allegations of predicate mail and wire fraud acts [must] state the contents of the communications, who was involved, [and] where and when they took place, and [must] explain why they were fraudulent" (Spool v World Child Int'l Adoption Agency, 520 F3d 178, 185 [2d Cir 2008], quoting Mills v Polar Molecular Corp., 12 F3d 1170, 1176 [2d Cir 1993]). "Several district courts have concluded that serving litigation documents by mail (which analysis the Court determines applies equally to litigation documents transmitted by wire) cannot constitute mail (or wire) fraud" (Warnock v State Farm Mut. Auto. Ins. Co., 2008 US Dist LEXIS 81507, *21 [SD Miss 2008], citing Auburn Med. Ctr. v Andrus, 9 F Supp 2d 1291 [MD Ala 1998]; Von Bulow v Von Bulow, 657 F Supp 1134 [SDNY 1987]; see also Nakahara v Bal, 1998 US Dist LEXIS 825, * 25 [SDNY 1998]; B.V. Optische Industrie De Oude Delft v Hologic, Inc., 909 F Supp 162 [SDNY 1995]). After the District Court in Warnock declined to dismiss a RICO cause of action where plaintiff alleged that the scheme involved the filing of frivolous lawsuits (Warnock, 2008 U.S. Dist. LEXIS 81507), in its denial of a motion for reconsideration, the court emphasized that the plaintiff alleged that defendants "also used mail and wire fraud to transmit correspondence and other documents related both to the individual lawsuits and to the overall scheme to deprive plaintiff and others of their property by dishonest means"(Warnock v State Farm Mut. Auto. Ins. Co., 2008 US Dist LEXIS 102181, *8 [S.D. Miss. 2008]). However, the court subsequently dismissed the RICO cause of action on summary judgment when the plaintiff was unable to demonstrate any correspondence or materials, other than litigation materials, to support the RICO allegations (Warnock v State Farm Mut. Auto. Ins. Co., 2011 U.S. Dist. LEXIS 63473 [SD Miss 2011]).

Defendants' motion to dismiss the RICO cause of action must be granted as the plaintiffs' allegations of mail fraud, wire fraud, and tampering with a witness or victim are, in fact, merely artfully pleaded claims for malicious prosecution and cannot form the basis of a RICO claim. "[M]alicious prosecution may not constitute a RICO predicate act" and plaintiffs have not alleged or, after two years of discovery, demonstrated any use of the mail or wire by defendants for purposes other than serving litigation documents (Von Bulow, 657 F Supp at 1143; see Warnock, 2008 U.S. Dist. LEXIS 81507, *22 [SD Miss 2008]; see Auburn, 9 F Supp 2d at 1297 [M.D. Ala 1998]; Nakahara, 1998 U.S. Dist. LEXIS 825 at * 25 [SDNY 1998]; see also B.V. Optische, 909 F Supp at 170). To the extent that plaintiffs allege that fraudulent wire confirmations and acknowledgments were received and rendered by the defendants, plaintiffs have failed in their burden as no [*8]proof of such wires were submitted in opposition to this motion.

Further, "[i]n alleging mail or wire fraud as predicate acts in a civil RICO complaint, it is necessary to allege that the injured party relied on the fraudulent misrepresentations of the defendant, and that the reliance was the cause of the injury" (B.V. Optische Industrie De Oude Delft, 909 F Supp at 170, citing Metromedia Co. v Fugazy, 983 F.2d 350, 368 [2d Cir 1992], cert. denied, 113 S Ct 2445 [1993]; see Southwell v Middleton, 17 Misc 3d 1129A [Sup Ct, Kings County 2007]). The court takes judicial notice that the plaintiffs have vigorously defended the Autoland Action from its inception and have included in their Autoland Action answer the affirmative defense of frivolous litigation practice by Autoland and LOV, and have attempted to incorporate the RICO cause of action in the present litigation as a counterclaim in that action. Accordingly, it is apparent that the plaintiffs did not rely on the alleged misrepresentations in the pleadings and litigation documents served in the Autoland Action and, therefore, those documents could not have caused injury to the plaintiffs (see B.V. Optische, 909 F Supp at 170 [SDNY 1995]).

Moreover, "if an act of wire fraud is alleged, it must be predicated on interstate communications" (Ritchie v Carvel Corp., 180 AD2d 786, 787 [2d Dept 1992], citing Creed Taylor, Inc. v CBS, Inc., 718 F Supp 1171, 1179 [SDNY 1989]). As all of the parties reside in New York, and all of the litigation has occurred in New York State, plaintiffs have failed to allege any interstate communication and the RICO cause of action based on wire fraud must be dismissed (see Ritchie, 180 AD2d at 787).

Further, "[w]itness tampering is actionable under 18 USC § 1512 only if it takes place in an official proceeding,' which is defined in § 1515(a)(1) to include only federal proceedings. Accordingly, tampering with a witness in a state judicial proceeding, the offense that Plaintiff alleged, is not a RICO predicate act" (Deck v Engineered Laminates, 349 F3d 1253, 1257 [10th Cir 2003]; see 18 USC 1515(a); Warden v Coolidge Unified Sch. Dist., 2008 US Dist LEXIS 101323, *14 [D Ariz 2008]). As all of the criminal and civil litigation referred to by plaintiffs have taken place in state court, and the criminal investigation has been conducted by state entities, the allegations of tampering with a witness or victim pursuant to 18 USC 1512 did not occur within the context of an "official proceeding" pursuant to 18 USC 1515(a) and may therefore not constitute a RICO predicate act (see 18 USC 1515(a); Deck, 349 F3d at 1257; Warden, 2008 US Dist LEXIS 101323 at *14).

Defendants have thus shown prima facie that the tenth cause of action has no merit as to them both legally and factually. Accordingly, the burden shifts to the plaintiffs to demonstrate the existence of a factual issue, requiring trial of the action, by providing admissible evidence (see CPLR 3212(b); Fotiatis, 70 AD3d at 632).

In opposition to the motion, plaintiffs submitted an attorney's affirmation with an affidavit from the plaintiffs' private investigator. In addition, plaintiffs attempted to "incorporate . . . by reference the Exhibits submitted with the Notice of Cross Motion on [*9]movants' summary judgment motion" in the Autoland Action. At oral argument, this court noted that referencing exhibits submitted in a separate action and in a separate motion was improper and the exhibits could not be considered as part of the record. It is noted that no principal or employee of the Auto Collection with knowledge of the facts submitted an affidavit contesting the defendants' motion for summary judgment.

The affidavit by the plaintiffs' private investigator, Warren Flagg ("Flagg"), makes numerous oblique allegations as to the defendants' purported involvement in the fraud with Pinkow and the purported identification of "Gena", the alleged recipient of the cars on behalf of the defendants. However, Flagg's affidavit is littered with vague assertions and most of the statements are based on his "opinion, to a reasonable degree of investigative certainty." Notably, the only source of his opinion that he cites, other than a review of deposition testimony and documentation provided by attorneys involved in this litigation, "is from the mouth and lips of Chris Pinkow, the ringleader." However, Flagg does not state that he actually met Pinkow or obtained any recordings of Pinkow. Accordingly, as Flagg has not demonstrated that he has any personal knowledge of the facts of this case, his opinions are based on either speculation or hearsay and he has not otherwise substantiated any of his opinions. As Flagg's affidavit is conclusory and lacks any foundation, it is therefore insufficient to raise a triable issue of fact (see CPLR 3212(b); Fotiatis, 70 AD3d at 632; Luu v Paskowski, 57 AD3d 856, 858 [2d Dept 2008]; Seyfried v Greenspan, 92 AD2d 563, 565 [2d Dept 1983] (holding, "[b]are conclusory allegations are insufficient to defeat a motion for summary judgment")). "Although hearsay evidence may be considered in opposition to a motion for summary judgment, it is by itself insufficient to defeat such a motion" (Raux, 59 AD3d at 985). In this motion, plaintiffs have not provided any other affidavit from a person with knowledge and, even if Flagg's hearsay were to be considered, it alone is insufficient to defeat a motion for summary judgment (see Raux, 59 AD3d at 985).

Plaintiffs' argument that the motion must be denied as plaintiffs were obstructed in their attempts to discover facts necessary to oppose the motion is also unpersuasive. Plaintiffs cite Saint James' Episcopal Church v FOCUS Foundation (47 AD3d 1058, 1059-1060 [2d Dept 2008]) for the proposition that Pinkow's invocation of his Fifth Amendment rights at deposition prevented plaintiffs from establishing proof in admissible form to oppose the current motion. However, the present action is distinguished from Saint James. In Saint James, hearsay evidence of statements made to a police investigator, by an individual who later asserted his Fifth Amendment rights, was considered by the court, to defeat a summary judgment motion because the statements to the investigator did raise issues of fact (see Saint James, 47 AD3d at 1059-1060). In the present action, plaintiffs' private investigator has not established any personal knowledge of the facts of the case or explained when or how he came by his information and has submitted a completely unsubstantiated affidavit. Further, in Saint James, the court relied on "some competent evidence [that] circumstantially supported" the hearsay statements [*10]that created an issue of fact in opposition to the motion (Saint James, 47 AD3d at 1060). Plaintiffs have not provided any other competent evidence to raise an issue of fact.[FN7]

Similarly, plaintiffs' reliance on Halpern Development Venture v Board of Trustees of Village of North Tarrytown (222 AD2d 652 [2d Dept 1995]) is misplaced as the court in Halpern affirmed the denial of summary judgment to defendant based on the defendant's refusal to cooperate in discovery where "many of the essential facts of the case were solely within the knowledge of the defendants . . .." In this action, there were 21 individual and corporate defendants identified as part of "the second RICO enterprise" and there has been extensive discovery for nearly two years. Unlike in Halpern, plaintiffs have not established that the essential facts of its claim are solely within the knowledge of Pinkow, nor have plaintiffs presented any substantiated evidence in opposition to this motion that raises an issue of fact as to whether any of the moving defendants participated in the alleged "second RICO enterprise" (see Halpern, 222 AD2d at 653). The tenth cause of action is therefore dismissed.

Defendants' motion to dismiss the remaining causes of action is denied. Although defendants also moved to dismiss the second, fourth, fifth, sixth, and seventh causes of action for aiding and abetting a breach of fiduciary duty, tortious interference with prospective business relations, conversion, unfair business practices, and fraud, respectively, defendants have not sufficiently argued or established that these causes of action are without merit [FN8] (see CPLR 3212(b)).

Conclusion

Defendants' motion to dismiss is granted as to the tenth cause of action and denied as to the remaining causes of action.

This constitutes the decision and order of the court.

E N T E R :

J.S.C. Footnotes

Footnote 1: On February 25, 2009, Justice Warshawsky of the New York State Supreme Court, Nassau County, changed the venue to Kings County and ordered the transfer of the related civil actions to Kings County except for Butenko which was later transferred to Kings County.

Footnote 2: Auto Collection alleges that they were dismissed from the criminal action, however, this has not been confirmed by the court.

Footnote 3: It is noted that the plaintiffs allege in the complaint that two separate RICO enterprises, involving the various defendants, were engaged in racketeering activities against Auto Collection. The only motion that is before this court involves "the second RICO enterprise", described in the tenth cause of action, which includes defendants Pinkow, Autoland, LOV, Oleg, Gleb, Boris Kotlyarsky, L & L Auto Distributors & Suppliers Inc., Nikolay Bergunker, A1A Auto Leasing Inc., Viktor Shulman, Boomerang Auto Inc., Konstantin Radchenko, Royal Auto Collection Inc., Anatoly Zlatokrasov, Epelbaum Teodor, Alex Brioukhov, AZTE, Inc., ABR Consulting Group Corp., Budget Autos LLC, Vladimir Lysogorsky, and FT & T Consulting Inc. Stipulations of discontinuance were entered between the plaintiffs and defendants Boomerang, Shulman, FT & T Consulting, and Lysogorsky herein on the same date as the FT & T and Boomerang actions were discontinued.

Footnote 4: Although not addressed in the current papers, the court takes judicial notice that in the US Autoland v Auto Collection action, Gleb alleges that he gave the $75,000 check to "Geeniy" who then transferred the check to Auto Collection. However, Gleb was not able to further identify "Geeniy" and Gleb indicated that he was no longer in contact with "Geeniy".

Footnote 5: The legibility of all three checks is poor and it is noted that there is additional writing on the third check. However, it does not appear to be a VIN number.

Footnote 6: Defendants provided copies of the checks as well as deposition testimony by Rubino in which he admitted to signing and depositing the checks into Auto Collection's account. Defendants also referenced deposition testimony from Joshua that confirmed that the checks were deposited into Auto Collection's account. While the cited Joshua Lever deposition transcript pages appear to have been mistakenly omitted from the papers, Auto Collection has not contested the deposit of the checks into its account and the court takes judicial notice that Joshua confirmed the depositing of the checks into Auto Collection's account in an affidavit in support of Auto Collection's summary judgment motion in the Autoland Action.

Footnote 7: It is noted that prior to invoking his Fifth Amendment rights at deposition, Pinkow responded to interrogatories in this action and in the Butenko action, in addition to submitting affidavits in the L & L action. In each of these sworn documents, Pinkow alleged that the owners of Auto Collection were engaged in the purported fraud. The court also takes judicial notice that in pleading guilty to the charge of scheme to defraud in the second degree on September 21, 2011, Pinkow swore that he "aided and abetted The Auto Collection" in a scheme to defraud others. Accordingly, unlike the hearsay in Saint James that raised an issue of fact in support of the party opposing summary judgment, Pinkow's consistent position that Auto Collection was involved in the purported fraud actually undermines plaintiffs' argument that Auto Collection was unaware of the fraud and that it was a victim of the alleged racketeering activity.

Footnote 8: After arguing that the RICO cause of action should be dismissed, defendants merely state that, "[n]owehere in the cause of discovery have Plaintiffs even remotely raised any questions of fact concerning [the allegations in the remaining causes of action]." No further analysis of the remaining causes of action was provided.