Gross v Chambre

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Gross v Chambre 2017 NY Slip Op 32828(U) May 15, 2017 Supreme Court, Rockland County Docket Number: 031761/2015 Judge: Thomas E. Walsh II Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. ---------:-------------------------------------INDEX NO. 031761/2015 [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:17 AM 1] NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 06/06/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -------------------------------------------------------------------x LESSER GROSS, individually DEVELOPERS LLC, and on behalf of LASK Plaintiff, DECISION Index -against- & ORDER No. 031761/2015 # 7 Motion ROBERT J. CHAMBRE, 14 RT 59 LLC, YOEL Y. WEISS, GIBRALTAR ABSTRACT COMPANY, SHAUL KOPELOWITZ, VICTOR WEISS and ISAAC SCHEINER and LASK DEVELOPERS LLC, Defendant. -------------------------------------------------------------------x Hon. Thomas E. Walsh II, J.S.C. The following papers numbered ROBERT J. CHAMBRE's (hereinafter Law and Rules Complaint 9 against 3212 (I) granting Defendant has no valid cause of action dismissing the Complaint CHAMBRE) motion Defendant against for indemnification undisputed facts establish in connection CHAMBRE summary the Defendant against granting judgment dismissing and (ii) in the event summary judgment SHAUL KOPLEOWITZ to transfer the subject the that ~Iaintiff judgment on his because the that CHAMBRE relied in good faith on the representations SHAUL KOPLEOWITZ as to his authority mortgage of to CHAMBRE: PAPERS NUMBER NOTICE OF MOTION/AFFIRMATION AFFIRMATION to Civil Practice facts establish CHAMBRE summary Defendant with Defendant for an Order pursuant CHAMBRE because the undisputed is not granted, cross-claim 1 -5 were considered OF STUART A. BLANDER, ESQ./EXHIBITS OF LESSER GROSS/AFFIRMATION OF RYAN KARBEN, ESQ. (A-R) 1 2 REPLY AFFIDAVIT OF STUART A. BLANDER, ESQ. IN FURTHER SUPPORT OF DEFENDANT CHAMBRE'S MOTION FOR SUMMARY JUDGMENT AGAINST KOPELOWITZ ON INDEMNITY CROSS-CLAIM AND IN OPPOSITION TO KOPELOWITZ' CROSS-MOTION TO DISMISS CROSS-CLAIM 3 REPLY AFFIDAVIT OF STUART A. BLANDER, ESQ. IN FURTHER SUPPORT OF DEFENDANT CHAMBRE'S MOTION FOR SUMMARY JUDGMENT DISMISSING PLAINTIFF'S COMPLAINT 4 CORRECTED REPLY AFFIDAVIT OF STUART A. BLANDER, ESQ. IN FURTHER 1 1 of 8 [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:17 AM 2] INDEX NO. 031761/2015 NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 06/06/2017 SUPPORT OF DEFENDANT CHAMBRE'S MOTION FOR SUMMARY JUDGMENT DISMISSING PLAINTIFF'S COMPLAINT Plaintiff brought this action against Defendant KOPELOWITZ's assignment himself. The original of a purchase money mortgage The property was owned by a limited liability co-defendant issued by co-defendant action arose from a dispute between Plaintiff KOPELOWITZ with respect to the sale of the property York. CHAMBRE regarding 5 WEISS to and Defendant located at 141 Route 59, Monsey, New company, LASK DEVELOPERS, LLC, in which the Plaintiff and Defendant KOPELOWITZ were each members membership CHAMBRE agreed that in exchange for the CHAMBRE interest. GROUP's contribution proportionate Defendant of $375,000 they would receive an equity to their contribution. Before Trial (hereinafter Based on the testimony interest in the property of CHAMBRE in his Examination EBT) the CHAMBRE GROUP asked several times for documentation regarding the distribution of LASK DEVELOPERS, LLC, which went undelivered. Defendant CHAMBRE, LASK DEVELOPERS, INC. sold the subject Defendant WEISS for $1.1 million dollars Defendant holding a 50% KOPELOWITZ subsequently alleged fraud, conversion without brought an action against in March 2014 to Plaintiff the disposition GROSS for an of the sale proceeds property. At around the same time Defendant Plaintiff GROSS, Defendant KOPELOWITZ brought the main action against KOPELOWITZ executed an Assignment of Mortgage LASK DEVELOPERS, INC. in his capacity as manager of the LLC. According CHAMBRE, the CHAMBRE GROUP was never informed sale of the subject property testified Defendant to Defendant of the sale and discovered CHAMBRE submits CHAMBRE GROUP contacted the monies they invested. on behalf of that the had occurred several months later upon an examination Rockland County Title Records. sale, Defendant Defendant attended a mediation of the CHAMBRE GROUP with Defendant of the Purchase Money Mortgage for Defendant KOPELOWITZ in Plaintiff filed the instant Preliminary Injunction WEISS to Defendant CHAMBRE, he took the offer and began to be contacted Defendant WEISS to arrange an extension of the due date. action and obtained prohibiting payment a Temporary Prior to receiving Restraining of the mortgage. agreed that he will not take any action regarding 2 2 of 8 of the KOPELOWITZ seeking a refund of December 2014 in which KOPELOWITZ offered to re-pay the loaned monies through According to Defendant of the that upon the discovery In CHAMBRE's EBT he and the members that he and the members assignment to the CHAMB.RE GROUP's knowledge. and other claims regarding from the sale of the subject property According the mortgage an CHAMBRE. by any money the Order and a Defendant CHAMBRE has until the undersigned [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:17 AM 3] INDEX NO. 031761/2015 NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 06/06/2017 " determines the validity of the Assignment In the Complaint Defendant Preliminary Mortgage. the Plaintiff of the Mortgage. has raised three (3) causes of action as to the CHAMBRE. The first cause of action seeks a Temporary Injunction prohibiting the Defendants that "only [plaintiff] manager of Lask." Plaintiff has any authority CHAMBRE seeks a declaratory to execute documents as Operating is also seeking the court "declare and determine the sole and only authorized Operating Manger of Lask." Defendant CHAMBRE asserts that Defendant Order and a from taking any action to enforce the The second cause of action against Defendant judgment Restraining is The third cause if action against KOPELOWITZ committed the Mortgage to his own name and that Defendants the [plaintiff] fraud in transferring CHAMBRE and GIBRALTAR who sought to enforce the note aided and abetted the fraud. As to the first cause of action, Defendant action" for either a Temporary injunction exists. provisional Defendant Restraining Order (hereinafter TRO) or a preliminary CHAMBRE submits that a TRO and preliminary remedies and not substantive Further, Defendant CHAMBRE argues that no such "cause of are causes of action that exist in their own right. CHAMBRE asserts that he has agreed to take no action with respect to the Mortgage unless and until the Court determines the validity of the assignment Mortgage, which removes the need for any request for injunctive Defendant injunction relief. CHAMBRE avers that the Plaintiff will suffer no irreparable Notice of Pendency regarding his claims which precludes a transfer of the Additionally, injury as he has filed a of the Mortgage free of Plaintiff's claims. Plaintiff submitted the instant action. Affirmation Opposition The Opposition that is in response to several of the pending consisted of a general Affidavit of Ryan Karben, Esq. which contain minimal Plaintiff asserts that Defendant did not have authority CHAMBRE had knowledge business tactics. Plaintiff and the Affirmation to Defendant's that co-Defendant Much of the argument of Defendant between Plaintiff and Defendant KOPELOWITZ. Court is directed to page 58 of Defendant that he told Defendant but did not address his authority Instead motion. KOPELOWITZ of with the Affidavit of of Ryan Karben, Esq. focuses on the conduct of co-Defendant KOPELOWITZ and his knowledge DEVELOPERS, INC. and an to assign the Mortgage based on CHAMBRE's knowledge KOPELOWITZ's deceptive testified opposition of Plaintiff motions CHAMBRE's knowledge Within the Affirmation KOPELOWITZ's testimony CHAMBRE about the dispute between to transfer Defendant of the agreement of Ryan Karben, the in which KOPELOWITZ himself and Plaintiff, the Mortgage or his legal obligations KOPELOWITZ testified 3 3 of 8 that he informed to LASK Defendant in [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:17 AM 4] INDEX NO. 031761/2015 NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 06/06/2017 CHAMBRE that he was transferring the mortgage money and "to ensure that everybody with additional funds." to protect the CHAMBRE GROUP partners recovers their money so Mr. Gross wouldn't Plaintiff avers that the knowledge dispute between Plaintiff and Defendant of Defendant walk off CHAMBRE of the KOPELOWITZ is a central fact at the heart of the claims. Turning . declaratory now to the second cause of action, Defendant judgment Operating sought addresses Plaintiffs authority Manager of LASK DEVELOPERS, INC. the declaratory judgment dispute between Defendant In opposition, action and whether Plaintiff fails to raise any argument it pertains to Defendant Defendant under Real Property Law 9 maintained regarding CHAMBRE. claim against Defendant CHAMBRE submits CHAMBRE is deficient 266, which protects a purchaser for valuable notice of the fraudulent CHAMBRE avers that a claim of aiding and abetting that raised a question about Defendant Defendant that Plaintiffs as a matter of for value consideration intent of the immediate due to the lack of any evidence that Defendant Additionally, the second cause of CHAMBRE asserts that he is a bona fide purchaser the purchaser had previous Further, Defendant asserts that KOPELOWITZ and Plaintiff. action for aiding and abetting Specifically, CHAMBRE further as an CHAMBRE and only addresses the Finally, as to the third cause of action, Defendant law. that the to execute documents Defendant does not relate to Defendant CHAMBRE submits unless grantor. of fraud cannot be CHAMBRE was aware of any facts KOPELOWITZ's authority to transfer the mortgage. CHAMBRE argues that even if there was an issue of fact about whether he was a bona fide purchaser the Plaintiff cannot succeed on a claim of aiding and abetting a fraud, as he has failed to demonstrate Defendant CHAMBRE's knowledge assistance in completing In opposition, of the fraud and Defendant of an underlying fraud, CHAMBRE's substantial the fraud. Plaintiff assistance" to Defendant the existence argues that Defendant KOPELOWITZ at different work or execute documents and as to Defendant company to record the "suspect" assignment. CHAMBRE has "provided times by being retained affirmative to perform legal CHAMBRE by seeking counsel and a title No further statements or facts are provided by Plaintiff in support of his opposition. The proponent defense sufficient tendering sufficient of a summary to warrant judgment a court directing evidence to demonstrate Citibank Corp., et aI., 100 NY2d 72 (2003), motion must establish judgment his or her claim or in its favor as a matter the lack of material issues of fact. of law, [Giuffrida citing Alvarez v. Prospect Hosp., 68 NY2d 320 4 4 of 8 v. [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:17 AM 5] INDEX NO. 031761/2015 NYSCEF DOC. NO. 187 (1986)]. RECEIVED NYSCEF: 06/06/2017 The failure to do so requires a denial of the motion without sufficiency of the opposing papers. [Lacagnino regard to the v. Gonzalez, 306 AD2d 250 (2d Dept 2003)] .. However, once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form demonstrating fact requiring trial. v. 98 Mag Leasing Corp., 95 NY2d 124 (2000), [Gonzalez material supra, and Wineqrad v. New York Univ. Med. Center, 64 NY2d 851 (1985)]. conclusions or unsubstantiated insufficient (1988); to raise a triable Zuckerman allegations unsupported issue. [(Gilbert by competent questions of citing Mere evidence are Frank Corp. v. Federal Ins. Co., 70 NY2d 966 v. City of New York, 49 NY2d 557 (1980)]. Pursuant to Civil Practice Law and Rules ~~ 6001 and 6301, a Preliminary and a TRO are provisional complaint. 2005); Alvarez, Injunction request for relief and cannot be a cause of action raised in a [319 Smile Corp. v. Forman Fifth, LLC, 2005 WL 5872218 (Sup. Ct. NY Cty 1842 7h Ave. Deli Corp. v. 200 West 12th St. Housing Dev. Fund, 2011 WL 2516745 (Sup. Ct. NY Cty 2011)]. As to the first cause of action, the Complaint Preliminary "preliminary Injunction is defective. injunction" in which Plaintiff seeks a TRO and a The first cause of action is defective and TRO which are provisional since it seeks a remedies pursuant Practice Law and Rules and are not properly stated as a cause of action. to the Civil Therefore, Defendant CHAMBRE's motion as to the first cause of action is granted. The Court notes that the Plaintiff has failed to raise any opposition CHAMBRE's argument regarding review of the Complaint the allegations the second cause of action. The Court notes that upon in the instant action, Defendant CHAMBRE is not mentioned of the second cause of action. seeks a declaratory to Defendant judgment DEVELOPERS, INC. Therefore, within Further, the entire second cause of action as to Plaintiff's authority in relation to his role at LASK Defendant CHAMBRE's motion for summary judgment as to the second cause of action is g ra nted. To state a claim for aiding and abetting existence of an underlying Kirschner, a fraud, a plaintiff fraud, actual knowledge and substantial 77 AD3d 51, 55-56 (1st Dept 2010); 303 AD2d 92, 100-101 (2d Dept 2011)]. (1st Dept 2003); It is insufficientto against the principal participants Houbigant, assistance. Inc. v. Deloitte High Tides, LLC v. DeMichele, merely raise allegations sufficient for fraud and combine conclusory and abettor had actual knowledge of the fraud. [National AD2d 144, 149 (1st Dept 1987).] must show allege the 88 AD 3d 954, 960 to state a claim 5 that the aider Bank v. Weksel, 124 To satisfy the element of an underlying 5 of 8 & Touche, LLP, allegations Westminster [Oster v. fraud the plaintiff [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:17 AM 6] INDEX NO. 031761/2015 NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 06/06/2017 must establish that there is "misrepresentation false and known to be false by the defendant, or a material omission of fact which was made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation material omission, and injury." [Orlando v. Kukielka, 40 AD3d 829, 831 (2d Dept 2007); Lama Holding Co., v. Smith Barney, 88 NY2d 413, 421 (1996)]. and abetting of a breach of fiduciary duty, in the circumstance party aided and abetted a fraud the "defendant fraud when it "affirmatively substantially Further, as in the aiding in which it is alleged thata assists the commission FSupp2d 452, 470 (S.D.N.Y. 2001)]. In demonstrating Finance Ltd. v. Berger, substantial must allege that the actions of the aider and abettor proximately liability is predicated" result of the conduct." [Cromer and the "injury caused the harm on which to be a direct or reasonably when the defendant duty, inaction by a defendant owes a fiduciary 137 assistance the plaintiff Finance Ltd., 137 FSupp2d at 470]. and abetting a breach of fiduciary "participation" of a assists, helps conceal, or by virtue of failing to act when required to do so enables the fraud to proceed." [Cromer the "primary or foreseeable As stated with aiding is only considered duty to the plaintiff." [Kolbeck, 939 FSupp at 247]. Defendant CHAMBRE has made a prima facie showing of entitlement a matter of law as to the third cause of action aiding and abetting the fraud. provided sweeping statements Defendant knowledge or familiarity business dealings." with no supporting facts regarding with Defendant KOPELOWITZ's "pattern evidence from the multiple CHAMBRE's of evasion arid deceit in fraud committed. EBTs of the parties demonstrates as Plaintiff has The evidence provided by Defendant CHAMBRE demonstrates Plaintiff has failed to show an existence of an underlying that the Further, the that there is no admissible evidence that Defendant CHAMBRE had knowledge that Defendant authority to judgment KOPELOWITZ didn't have transfer the mortgage. Upon Defendant CHAMBRE meeting his burden on the summary the burden shifted to Plaintiff to produce evidentiary material questions of fact requiring proof in any form (admissible question offact motion, form demonstrating The Plaintiff has failed to produce any evidentiary or not admissible) that demonstrates that there is a material as to the First, Second and Third causes of action that require a trial. Nothing in Plaintiff's opposition an underlying trial. proof in admissible judgment as to the First, Second and Third causes of action allege that fraud was committed by Defendant KOPELOWITZ against Plaintiff and that Defendant CHAMBRE's actions aided or abetted. As to Defendant CHAMBRE's request to have his cross-claim 6 6 of 8 for indemnification is [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:17 AM 7] INDEX NO. 031761/2015 NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 06/06/2017 moot as each of the causes of action in the Complaint been dismissed against" Defendant CHAMBRE have as stated in the Court's Decision and Order. Accordingly, it is ORDERED that Defendant granted in its entirety; CHAMBRE's motion for Summary Judgment (Motion #7) is and it is further ORDERED that as to Defendant CHAMBRE the instant action is dismissed; and it is further ORDERED that the previously Injunction issUed in the instant Restraining action remains in effect; ORDERED that Defendant Mortgage assigned to Defendant granted Temporary CHAMBRE is directed Order and Preliminary and it is further. to take no action with respect to the CHAMBRE from Defendant KOPELOWITZ until further of this Court. The foregoing Dated: constitutes the Decision and Order of this Court on Motion #7. New Ci11"NeW York May > , 2017 . HOMAS E. WALSH II Justice of the Supreme Court TO: RYAN S. KARBEN, ESQ. Attorney for Plaintiff LESSER GROSS. (via e-file) JEFFREY FLEISCHMAN, ESQ. LAW OFFICE OF JEFFREY FLEISCHMAN, P.e. Attorney for Defendant KOPELOWITZ (via e-file) LISA L.SHREWSBURY, ESQ. TRAUB LIEBERMAN STRAUS & SHREWSBERRY, LLP Attorney for Defendants GIBRALTAR ABSTRACT COMPANY and VICTOR WEISS (via e-file) . 7 7 of 8 Order [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:17 AM 8] NYSCEF DOC. NO. 187 INDEX NO. 031761/2015 RECEIVED NYSCEF: 06/06/2017 STUART A. BLANDER, ESQ. Attorney for Defendant CHAMBRE (via e-file) 8 8 of 8

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