Furman v 2009 Realty, LLC

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Furman v 2009 Realty, LLC 2018 NY Slip Op 31912(U) July 30, 2018 Supreme Court, Kings County Docket Number: 507659/18 Judge: Leon Ruchelsman 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: KINGS COUNTY CLERK 08/03/2018 1] INDEX NO. 507659/2018 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 08/10/2018 .- f \~_s;:o SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM : COMMERCIAL 8 10\~ ~·JG -3 ~H 1: 30 --------------- ---------------------------x ROSTISLAV FURMAN Plaintiff, - against - Dec i sion and order Index No. 507659/18 2009 REALTY , LLC , BRIAN SHALITZKY , SUSAN SHALITZKY , EVA BODNER, JACOB YAMPEL , RAISA YAMPEL Defendants , f(\ .i' &= 1-- July 30 , 2018 ------------------------------------- -----x PRESENT : HON. LEON RUCHELSMAN The plaintiff has moved seeking a preliminary injunction pursuant to CPLR §630 1 preventing t h e defendants from engaging in activities that harm the business prospects of the plaintiff . The defendant has opposed the motion arguing it has no merit. Papers were submitted by the parties and arguments held . After reviewing all the arguments , this court now makes the following determination . The plaintiff , a fifty percent owner of the defendant corporation instituted a lawsuit a lleging essentially that the de fendan ts have frozen him out of access to the books and records of the corporation and have otherwise deprived him of distributions of the corporation . The plaintiff has moved seeking an injunction restraini ng the defendants from involveme nt in any assets of the corporation . The defendants have opposed the motion arguing the injunct ion has no merit . 1 of 4 I ou.n , CL-·"' [*FILED: KINGS COUNTY CLERK 08/03/2018 2] INDEX NO. 507659/2018 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 08/10/2018 Conclusions of Law It is we l l settled t hat to obtain a preliminary injunction the moving party must demonstrate : the merits , (1) a likelihood of success on (2) an irreparable injury absent the injunct i on ; and (3) a balancing of the equities in its favor (Volunteer Fire Association of Tappan , Inc ., v . County of Rockland , 60 AD3d 666 , 883 NYS2d 706 [2d Dept ., 2009)) . In this case the basis for the injunction is grounded in the fact that the failure to grant such relief will cause harm to the plaintiff . Of course , the defendants deny these underlying facts supporting the injunctive relief and indeed there is little evidence presented supporting those allegations . Indeed, other than conclusory allegations of improper conduct , the only evidence consists of the plaintiff ' s claims . Thus , whil~ it is true t hat a preliminary injunction may be granted where some facts are in dispute and it is still apparent the moving party has a likelihood of success on the merits , (see , Borenstein v . Rochel Properties , 176 AD2d 171 , 574 NYS2d 192 [1st Dept . , 1991)) some ev i dence of likelihood of success must be presented . Therefore , when "key facts" are in dispu te and the basis for the injunction res t s upon "speculation and conjecture" the injunction must be denied (Faberge International Inc., v. Di Pino , 109 AD2d 235 , 491 NYS2d 345 [1st Dept ., 1985)) . 2 2 of 4 [*FILED: KINGS COUNTY CLERK 08/03/2018 3] INDEX NO. 507659/2018 NYSCEF DOC. NO. 69 , RECEIVED NYSCEF: 08/10/2018 .. In this case the plaintiff has not presented any specific evidence that have a li ke lihood of success on the claims . The plaintiff alleges in conclusory terms that the defendant's behavior is harming th e LLC and should thus cease to continue . However, there is no specific evidence demonstrating a likeli hood of success on the merits . For example , the plaintiff alleges in conclusory terms that he has been frozen out of dis tribut ions and attempte~ to call a meeting but to no avail . The plaintiff has not explained the nature of the freeze out and how an inj.unction is necessary to preserve any assets or rights as opposed to monetary relief . Therefore , plaintiff's claims fall far short of establishing a likelihood of success on the merits (see , Hui v . New Clients Inc ., 126 AD3d 759 , 5 NYS3d 279 · [2d Dept., 2015)). Thus , in John G. Ulman & Associates , Inc . , v . BCK Partners Inc . , 139 AD3d 1358 , 30 NYS3d 785 [4th Dept ., 2016) the court denied a preliminary injunction brought to stop a former employee from unnecessarily taking over the plaintiff's part in the LLC , and from improperly soliciting clients to have an unfair advantage in the LLC . The court explained that the allegations were conclusory and did not warrant the drastic remedy sought . Further , the court noted there was insufficient evidence monetary damages would not be sufficient . Likewise, in this case , other than conclusory allegations , there is no specific evidence 3 3 of 4 [*FILED: KINGS COUNTY CLERK 08/03/2018 4] NYSCEF DOC. NO. 69 INDEX NO. 507659/2018 RECEIVED NYSCEF: 08/10/2018 .. . . . demonstrating the defendant engaged in any of these actions sufficient to establish that t he plaintiff will likely prevail upon them . Therefore , the motion seeking a preliminary injunction is denied . So ordered . ENTER : DATED : July 30, 2018 Brooklyn N. Y. Hon . Leon Ruchel sman JSC - . -2 r---:> -;r.. r.> (./) c:::> c;:::J G') \ (.>) ~ _,,_ --1 c...> 0 4 4 of 4 -::-: '·O F~ r-i::0......:- ,rn I,") ;o _.,.. .,,.,..

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