Lesnevsky v Pak

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Lesnevsky v Pak 2017 NY Slip Op 31290(U) June 15, 2017 Supreme Court, Kings County Docket Number: 502471/14 Judge: Lawrence S. Knipel 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: KINGS COUNTY CLERK 06/15/2017 12:00 PM 1] NYSCEF DOC. NO. 380 INDEX NO. 502471/2014 RECEIVED NYSCEF: 06/15/2017 At an IAS Term, Commercial Part 4 of the Supreme Court of the State ofNew York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 2"d day of June, 20 17. PRES ENT: HON. LAWRENCE KNIPEL, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X EDWARD LESNEVSKY' individually and on behalf of NEWARK SUPPLIES LIMITED LIABILITY COMPANY, NEWARK FLOORING EXPRESS LLC, FORTE FLOORTNG GROUP, LLC, VEGA WORLD SUPPLY, INC., VEGA HOLDINGS LIMITED LIABILITY COMPANY, V & M BUILD INC., INTERNATIONAL BUILDING MACHINERY, LLC, COLUMBUS INTERNATIONAL, INC., COLUMBUS INTERNATIONAL, and LTD. AVANGARD, O RDER Plaintiff, Index No. 502471114 - against VLADIMIR PAK, THOMAS AGRACHOV, ELENA YOFFE, NATALIA KOGTEVA, NEWARK SUPPLlES LIM ITED LIAB L LITY COMPANY, NEWARK FLOORING EXPRESS LLC, FORTE FLOORING GROUP, LLC, VEGA WORLD SUPPLY, INC., V & M BULLO, INC., VEGA HOLDINGS LIMITED LLABILITY COMPANY, INTERNATIONAL BUlLDING MACHINERY, LLC, COLUMBUS INTERNATIONAL, INC., COLUMBUS INTERN ATI ON AL, and LTD. AV AN GARD, Mot. Seq. No. 15 Defendants, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The following e-filed papers read herein: NYSCEFNo. Notice of Motion/Cross Motion, Affirmation, Memorandum of Law, and Exhibits Annexed _ _ __ 361-373 374 Opposing Affirmation, Memorandum of Law, and Exhibits Annexed-- - - -- - -- - -- - 375-377, 378 Reply Affirmation-- -- - -- - - - - - - 1 of 4 379 [*FILED: KINGS COUNTY CLERK 06/15/2017 12:00 PM 2] NYSCEF DOC. NO. 380 INDEX NO. 502471/2014 RECEIVED NYSCEF: 06/15/2017 In this action arising out of a business divorce, plaintiff moves in Seq. No. 15 for an order, pursuant to CPLR 2221 (d) and (e), granting him leave to reargue and, as to some causes of action, for leave to renew his cross motion for partial summary judgment on liability on his 3rd, 4th, 8t\ 9th, 10L11 , 11°1, 121\ 13°1, 141h, and 15th causes of action of his complaint (the prior motion) and, upon reargument and renewal, granting his prior motion. By order, dated Jan. 31, 2017 (NYSCEF #345), the Court, inter alia, denied the prior motion. The reasons for denial were two-fold. As to the 3rd, 4th, 11th, 12th, and 13 111 causes of action, the Comi found that ( 1) the prior motion was untimely, having been made beyond the 60-day post-Note of Issue deadline; (2) the prior motion offered no explanation for the delay; and (3) the issues raised by the aforementioned causes of action were outside those raised by the then-pending (and timely) motion made by certain defendants. As to the remaining causes of action addressed in the prior motion (i.e., 8°1, 91\ 10th, 14L\ and 15th causes of action), the Court denied that branch of the prior motion with leave to renew upon submission of specified records. Discussion Starting with the branch of the instant motion which is for leave to reargue the branch 1 1 of the prior motion which was for partial summary judgment on liability on the 3rd, 4 \ 11 \ 12i\ and l3 1h causes of action, the Court denies the plaintiff leave to reargue. The prior motion was undisputedly untimely as to these causes of action. That the plaintiff desired to combine his opposition to the defendants' motion with his own cross motion did not obviate 2 2 of 4 [*FILED: KINGS COUNTY CLERK 06/15/2017 12:00 PM 3] NYSCEF DOC. NO. 380 INDEX NO. 502471/2014 RECEIVED NYSCEF: 06/15/2017 his obligation to move timely on the aforementioned causes of action. That his cross motion complied with CPLR 22 15 does not excuse his untimeliness under the Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6. Therefore, the prior order, insofar as it denied the prior motion for partial summary judgment on liability on the 3rd, 41h, 11th, 12t11, and 13th causes of action, remains in effect, and "no appeal lies from an order denying reargument" (Costello v Costello Shea & Gaffney, LLP, 93 AD3d 684, 685 [2d Dept 2012]). Turning to the remaining branch of the instant motion which is for leave to renew the branch of the prior motion which was for partial summary judgment on liability on the gt\ 9th, 101h, 14th, and 15th causes of action, leave to renew is granted in accordance with the prior order and, upon renewal, the remaining branch of the prior motion is denied. Viewing the evidence in the light most favorable to the defendants as the non-movants (see Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 NY3d 1048, 1049 [2016]), there are triable issues of fact, inter alia, whether the plaintiff abandoned his businesses (as the defendants claim, he did) or whether the defendants Vladimir Pak and Thomas Agrachov conspired to convert, and did convert, the property in the entities in which the plaintiff was part owner (as the plaintiff claims, defendants Pak and Agrachov did). Given its paucity, the plaintiffs evidence is at best underwhelming. The deposition testimony is hopelessly conflicting on almost every issue. The documentary evidence, which plays a critical role in most commercial cases, consists here of only some checks and of several isolated pages from some of the monthly bank statements for two of the entities in which he claims an interest. The 3 3 of 4 [*FILED: KINGS COUNTY CLERK 06/15/2017 12:00 PM 4] . . NYSCEF DOC. NO. 380 INDEX NO. 502471/2014 RECEIVED NYSCEF: 06/15/2017 plaintiff has not laid out his case for partial summary judgment on liability on any of the causes of action numbered 81\ 9tJ1, 10th, 14tJ1, or 15 111 of his complaint. The burden is on the plaintiff to make a prima facie showing; the Court will not do it for him. The plaintiffs motion is denied in its entirety. The parties are reminded of their next scheduled appearance in Commercial Part, Trial 4, on June 30, 2017. This constitutes the order of the Court. 4 4 of 4

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