Gross v Chambre

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Gross v Chambre 2017 NY Slip Op 32829(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. [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:20 AM 1] INDEX NO. 031761/2015 NYSCEF DOC. NO. 188 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, & ORDER DECISION -against- Index No. 031761/2015 Motion # 8 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 1 -3 were considered in connection with Defendant SHAUL KOPELOWITZ and LASK DEVELOPERS LLC Notice of Motion for Summary for an Order (a) granting 3212 dismissing summary the Complaint judgment pursuant Judgment to Civil Practice Law and Rules and for such other and further 9 relief as the Court deems just and proper: NUMBER PAPERS NOTICE OF MOTION/AFFIRMATION OF JEFFREY FLEISCHMANN, ESQ./EXHIBITS E)/AFFIRMATION OF SHAUL KOPELOWITZ, ESQ./EXHIBITS (A-E) AFFIRMATION OF LESSER GROSS/AFFIRMATION (A1 OF RYAN KARBEN, ESQ. 2 REPLY AFFIDAVIT OF JEFFREY FLEISCHMANN, ESQ. Plaintiff brought this action against KOPELOWITZ assigned to himself belonging Defendant KOPELOWITZ alleging a purchase money mortgage # 032450/2015) arise from a business transaction located at 141 Rt. 59 Airmont, into a contract to sell the subject 59 LLC, for $1.1 million on his allegations dollars. that Plaintiff New York. property Defendant WEISS's entity, KOPELOWITZ brought WEIS.S engaged 1 1 of 6 of $450,000 Kopelowitz v. for the sale of In October 3, 2013 the Plaintiff to Defendant and Defendant that Defendant in the amount to LASK DEVELOPERS, LLC. This action and the related action, Weiss et al., (Index property 3 Defendant the related in a "secret entered 141 RT action based deal" to steal [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:20 AM 2] INDEX NO. 031761/2015 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 06/06/2017 money from Plaintiff with the assistance of former Defendant closing on the subject property, check for $225,000 Plaintiff received and deposited and alleging After the into his personal account a of the sale proceeds from the sale of the subject Defendant KOPELOWITZ commenced accounting, MICHAEL KLEIN. property. As a result the related action.on June 2, 2014 seeking an a breach of fiduciary duty, fraud, conversion and unjust enrichment. Plaintiff commenced alleging that Defendant the instant action on April 22, 2015 against the Defendants KOPELOWITZ improperly assigned to himself a purchase money mortgage which was dated March 18, 2014 and subsequently County Clerk. Plaintiff's unjust enrichment declaratory Complaint alleges a breach of fiduciary along with causes of action for a temporary judgment. dated September enforcing, recording, demanding InjUnction the Plaintiff prohibiting that "only [plaintiff] manager of Lask." Plaintiff to on, or engaging injunction the Defendants has any authority Operating KOPELOWITZ committed and that Defendants abetted the fraud. Restraining in by an Order Order and a from taking any action to enforce the KOPELOWITZ seeks a declaratory to execute documents as Operating is also seeking the court "declare and determine the sole and only authorized Manger of Lask." the [plaintiff] is In the third cause Plaintiff asserts fraud in transferring the Mortgage to his own name CHAMBRE and GIBRALTAR who sought to enforce the note aided and In the fourth cause of action Plaintiff asserts that Defendant KOPELOWITZ transferred authority, injunction has raised six (6) causes of action as to the Defendant The second cause of action against Defendant that Defendant order and 10, 2015. KOPELOWITZ. The first cause of action seeks a Temporary judgment payment The Court granted the motion for a preliminary In the Complaint Mortgage. restraining and related to the Purchase Money Mortgage until the related action, Kopelowitz v. Weiss is resolved. Preliminary duty, fraud, conversion On April 27, 2015 Plaintiff moved for a preliminary enjoin Defendants from further any transaction recorded with the Rockland converting an asset of LASK DEVELOPERS, INC to his own name without company funds to his own use. As to the fifth cause of action Plaintiff alleges a breach of Fiduciary Duty by Defendant KOPELOWITZ when he transferred of LASK DEVELOPERS, INC to his own name without of company funds to his own use. authority which resulted in a converting Finally, as to the sixth cause of action Plaintiff that Defendant KOPELOWITZ transferred named without authority, converting an asset alleges an asset of LASK DEVELOPERS, INC. to his own company funds to his own use and unjustly himself. 2 2 of 6 enriching [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:20 AM 3] INDEX NO. 031761/2015 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 06/06/2017 Defendant KOPELOWITZ argues that Plaintiff's causes of action for fraud, breach of fiduciary duty, conversion and unjust enrichment proof of an essential element - damages. must be dismissed based on a lack of Defendant submits that each of the causes of action alleged by Plaintiff require a showing that the Plaintiff was injured as a result of Defendant's representations. his Examination assignment According to Defendant KOPELOWITZ, the Plaintiff admitted Before Trial (hereinafter EBT) that there were no damages as a result of the of the Purchase Money Mortgage since it has been continuously Defendants in escrow subject to the resolution sale of the subject property Plaintiff submitted the instant action. Opposition Plaintiff and an Affirmation of the parties rights to the proceeds of the that is in response to several of the pending motions in submitted by Plaintiff consists of a general Affidavit of of Ryan Karben, Esq. which contains no annexed Plaintiff asserts that the Defendant burden under" the "rigorous standard" fiduciary duty and unjust enrichment. appears to allege that the fraudulent has failed to reach his "heavy of a Summary Judgment. Plaintiff delineates the legal requirement assignment held by in the related action. The Opposition documents/exhibits. in In support of his argument to sustain a claim for fraud, conversion, Additionally conduct/act breach of as to the claim for fraud, Plaintiff of Defendant KOPELOWITZ was the of the Purchase Money Mortgage from Weiss in and of itself. Further, Plaintiff states that all of the elements of each cause of action were set forth with the particularity required by Civil Practice Law and Rules Esq.'s Affirmation claims." 3106 (b) in the Complaint. In Ryan Karben, he avers that the "facts adduced in discovery only buttress The statement of counsel is not followed or supported alleges support Plaintiff's In Reply Defendant GROSS' by any of the facts that he claim. KOPELOWITZ raises an issue with Plaintiff's submits that the Plaintiff testified and the statements !3 in a deposition provided in the Affidavit prior to completion Affidavit in which he of the instant Affidavit regarding damages are directly contradicted by the Plaintiff's EBT testimony. The proponent defense sufficient tendering sufficient of a summary judgment to warrant a court directing judgment evidence to demonstrate Citibank Corp., et aI., 100 NY2d 72 (2003), (1986)]. motion must establish in its favor as a matter of law, the lack of material issues of fact. [Giuffrida v. citing Alvarez v. Prospect Hasp., 68 NY2d 320 The failure to do so requires a denial of the motion without sufficiency of the opposing papers. his or her claim or [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 3 3 of 6 [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:20 AM 4] INDEX NO. 031761/2015 NYSCEF DOC. NO. 188 .. RECEIVED NYSCEF: 06/06/2017 .. . motion to produce evidentiary proof in admissible fact requiring v. 98 Mag Leasing Corp., 95 NY2d 124 (2000), trial. [Gonzalez form demonstrating material supra, and Winegrad v. New York Univ. Med. Center, 64 NY2d 851 (1985)]. conclusions or unsubstantiated insufficient.to (1988); raise a triable Zuckerman allegations unsupported issue. [(Gilbert by competent citing Mere evidence are Frank Corp. v. Federal Ins. Co., 70 NY2d 966 has made a prima facie showing of entitlement as a matter of law as to the third, fifth and sixth causes of action. KOPELOWITZ meeting his burden on the summary judgment Plaintiff to produce evidentiary to judgment Upon Defendant motion, proof in admissible form demonstrating the burden shifted to material The Plaintiff has raised triable issues of fact requiring questions of a trial regarding the third cause of action for fraud, the fifth cause of action for breach of fiduciary the sixth cause of action for unjust enrichment. conversion; duty and unjust enrichment exercise of dominion Export Isbrandtsen Physical possession of the property any wrongful exercise of dominion duty and KOPELOWITZ's respectively and control over plaintiff's [General Bee. Co v. American Dept 1971)]. Defendant th action, fraud, breach of fiduciary conversion. Therefore, as to the third (3rd), fifth (5th) and sixth (6 Motion for Summary Judgment An unlawful Alvarez, v. City of New York, 49 NY2d 557 (1980)]. Defendant KOPELOWITZ fact requiring trial. questions of causes of ) are all denied. property constitutes a Lines, Inc., 37 AD2d 959 (2d is not a requirement to prove a by one other than the owner is a conversion. [General Bee. Co., 37 AD2d at 959; Suzuki v. Small, 214 AD541, 557 (1st Dept 1925)]. "To establish a cause of action in conversion, immediate the plaintiff superior right of possession to a specific identifiable the defendant exercised an unauthorized exclusion of the plaintiff's rights." dominion [Independence Discount Fiorenti v. Central Emergency 454-455 If the plaintiff (2d Dept 2003)]. that are alleged to have been converted, 305 AD2d at 455]. thing, and must show that Corp., v. Bressner, Physicians, et aI, 47 PLLC, 305 AD2d 453, never had title, possession or control of the funds the action for conversion Additionally, of an over the thing in question to the AD2d 756 (2d Dept 1976); [Fiorenti, must show legal ownership a claim of conversion cannot be sustained. cannot be based on a "mere breach of contract." The subject matter of a conversion cause of action "must constitute tangible personal property" ~ real property and interests in business opportunities suffice. [ARB Upstate CommuniCations, Dept 2012); identifiable Romer & Featherstonhaugh 1999); Rao v. Verde, 222AD2d will not LLC v. R.J. Reuter, LLC, 93 AD 3d 929, 931-932 v. Featherstonhaugh, 569, 570 (2d Dept 1995); 4 4 of 6 (3d 267 AD2d 697, 697 (3d Dept Volodarsky v. Moonlight [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:20 AM 5] INDEX NO. 031761/2015 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 06/06/2017 Ambulette Service, Inc., 122 AD3d 619, 620 (2d Dept 2014)]. (4th) cause of action (conversion), As to the fourth a prima facie showing of entitlement KOPELOWITZ has demonstrated conversion is real property subject of a conversion sounding in conversion as a matter of law. Upon Defendant Agreement, is not properly a KOPELOWITZ's meeting a triable material questions of fact requiring issue of fact. As such the fourth th (4 sought by Plaintiff is contradicted Defendant cause of action KOPELOWITZ submits that the by the terms of the Operating which provides that each member is an operating matter of law as to the second cause of action for declaratory Motion for Summary Accordingly, ) trial. is dismissed as to Defendant KOPELOWITZ. manager. KOPELOWITZ has failed to make a prima facie showing of entitlement Defendant's his burden motion, the burden shifted to Plaintiff to produce evidentiary Turning now to the second cause of action, Defendant declaratory judgment Defendant or his interest in the business and therefore form demonstrating has failed to demonstrate KOPELOWITZ has made that the property which Plaintiff is alleging was subject to cause of action. on the summary judgment proof in admissible to judgment Defendant Judgment Defendant to judgment judgment. as a Therefore, as to the second (2nd) cause of action is denied. it is ORDERED that Defendant KOPELOWITZ's motion for Summary #8) is granted in part and denied in part as delineated Judgment (Motion in the above Decision of the Court; and it is further ORDERED that Defendant KOPELOWITZ's motion for Summary following causes of action are denied: ORDERED that Defendant 4th cause of action is granted; th 2nd, 3rd, 5th and 6 ; Judgement as to the and it is further KOPELOWITZ's motion for Summary Judgment as to the and it si further ORDERED that 4th Cause of Action for Conversion in the instant Complaint dismissed. The foregoing Dated: constitutes the Decision and Order of this Court on Motion #8. New C{~New York May -72017 5 5 of 6 is [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:20 AM 6] NYSCEF DOC. NO. 188 INDEX NO. 031761/2015 RECEIVED NYSCEF: 06/06/2017 ON. THOMAS 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, Attorney for Defendant KOPELOWITZ (via e-file) P.c. LISA L. SHREWSBURY, ESQ. TRAUB LIEBERMAN STRAUS & SHREWSBERRY, LLP Attorney for Defendants GIBRALTAR ABSTRACT COMPANY and VICTOR (via e-file) STUART A. BLANDER, ESQ. Attorney for Defendant CHAMBRE (via e-file) 6 6 of 6 WEISS

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