Gross v Chambre

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Gross v Chambre 2017 NY Slip Op 32830(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 07:22 AM 1] INDEX NO. 031761/2015 NYSCEF DOC. NO. 189 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 Motion # 9 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, .I.S.C. The following papers numbered 1 - 2 were considered SHAUL KOPELOWITZ's Notice of Motion for an Order granting 9 to Civil Practice Law and Rules claim for indemnification 3212 dismissing and granting Defendant such other and further in connection summary w~th Defendant judgment pursuant ROBERT CHAMBRE's crossrelief as the Court deems just and proper: PAPERS NUMBER NOTICE OF MOTION/AFFIRMATION OF JEFFREY FLEISCHMANN, ESQ./EXHIBITS C)/AFFIRMATION OF SHAUL KOPELOWITZ, ESQ. (A1 REPLY AFFIDAVIT 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 Plaintiff brought KOPELOWITZ assigned belonging to himself 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 WEISS engaged 1 1 of 4 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 this action against 2 Defendant entered 141 RT the related action based in a "secret deal" to steal [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:22 AM 2] INDEX NO. 031761/2015 NYSCEF DOC. NO. 189 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 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 and alleging 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. 24, 2015. Defendant Specifically, CHAMBRE interposed Defendant recorded with the Rockland an Answer with cross-claims CHAMBRE asserted a cross-claim on September against Defendant KOPELOWITZ for indemnification. Defendant KOPELOWITZ argues that Defendant existence of any contractual CHAMBRE. Further, obligation Defendant provides a right of indemnification is inapplicable of his counsel admits that no contract from Defendant KOPELOWITZ submits that the doctrine participated that he "himself In Opposition CHAMBRE cannot seek to indemnify the Purchase Money Mortgage was assigned. defense sufficient sufficiency himself from a agreement submitted Defendant on CHAMBRE. signed by the parties when However, Defendant CHAMBRE asserts that an can be implied by the language and purpose of the agreement sufficient of a summary to warrant judgment motion must establish a court directing judgment evidence to demonstrate Citibank Corp., et aI., 100 NY2d 72 (2003), (1986)]. Defendant and facts and circumstances. The proponent tendering that the party CHAMBRE submits that based on his Affidavit Defendant CHAMBRE concedes there is no indemnity the surrounding indemnification aided and abetted fraud." Defendant to indemnify exists that Specifically, Motion #7 there is no basis for the Plaintiff to assert any claim against intention to the fact that of implied must demonstrate in the alleged wrongdoing. KOPELOWITZ asserts that Defendant Defendant KOPELOWITZ. to the instant action because Defendant seeking indemnification judgment KOPELOWITZ to indemnify KOPELOWITZ directs the Court's attention Defendant CHAMBRE in the Affidavit Further, Defendant of Defendant CHAMBRE has failed to allege the in its favor as a matter the lack of material issues of fact. papers. of law, [Giuffrida v. citing Alvarez v. Prospect Hasp., 68 NY2d 320 The failure to do so requires a denial of the motion without of the opposing his or her claim or [Lacagnino regard to the v. Gonzalez, 306 AD2d 250 (2d Dept 2003)]. 2 2 of 4 [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:22 AM 3] INDEX NO. 031761/2015 NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 06/06/2017 . ::::~e:~ trial. the burden shifts to the party opposing [Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124 (20 , and Winegrad v. New York Univ. Med. Center, 64 NY2d 851 (1985)]. concl~sions or unsubstantiated insufficient (1988); to raise a triable Zuckerman Defendant as a matter Defendant unsupported issue. [(Gilbert KOPELOWITZ by competent mg , Mere evidence are Frank Corp. v. Federal Ins. Co., 70 NY2d 966 has made a prima facie showing Defendant KOPELOWITZ meeting shifted to Defendant question allegations CI v. Citv of New York, 49 NY2d 557 (1980)]. of law dismissing demonstrating the phr::f in admissi~le form demonstrating m:t~tl:ues:~~;r:: :~:::C~c:V~ds:n~:;:: fact requiring supra been made CHAMBRE's cross-claim his burden on the summary CHAMBRE to produce evidentiary material questions of fact as to whether of fact requiring the parties, to judgment for indemnification. judgment motion, proof in admissible trial. Defendant of entitlement The Plaintiff Upon the burden form has raised a material KOPELOWITZ intended on Indemnifying Defendant CHAMBREbased on the facts surrounding the meeting in which the Purchase Money Mortgage was assigned from Defendant KOPELOWITZ to Defendant CHAMBRE. As such, Defendant KOPElPOWrrz' Motion of Summary JUdgment to dismiss Defendant CHAMBRE's cross-claims Accordingly, for indemnification is denied. it is ORDERED that Defendant KOPELOWITZ'smotion for Summary JUdgment (Motion #9) is denied in its entirety. The foregoing Dated: New May CitrrNew constitutes the Decision and Order of this Court on Motion #9. York -F-, 2017 . THOMAS E. WA Justice of the Supreme TO: RYAN S. KARBEN, ESQ. Attorney for Plaintiff LESSER GROSS (via e-fiIe) 3 3 of 4 Court [*FILED: ROCKLAND COUNTY CLERK 06/07/2017 07:22 AM 4] NYSCEF DOC. NO. 189 JEFFREY FLEISCHMAN, ESQ. LAW OFFICE OF JEFFREY FLEISCHMAN, Attorney for Defendant KOPELOWITZ (via e-file) INDEX NO. 031761/2015 RECEIVED NYSCEF: 06/06/2017 P.c. LISA L. SHREWSBURY, ESQ. TRAUB LIEBERMAN STRAUS & SHREWSBERRY, LLP Attorney for Defendants GIBRALTAR ABSTRACT COMPANY and VICTOR (via e-fiIe) STUART A. BLANDER, ESQ. Attorney for Defendant CHAMBRE (via e-file) 4 4 of 4 WEISS

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