Khanukov v Badalova

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Khanukov v Badalova 2019 NY Slip Op 30230(U) January 22, 2019 Supreme Court, Kings County Docket Number: 526189/18 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: 1] KINGS COUNTY CLERK 01/29/2019 ., NYSCEF DOC. NO. 26 .I INDEX NO. 526189/2018 RECEIVED NYSCEF: 01/30/2019 SUPREME COUR':: OF THE STATE CF NEW YORK COUN?Y OF KINGS : CIVIL TERM: COMMERCIAL 8 --------------------------------- -------x ELINA KHANUKOV, individually and derivatively, ON BEHALF OF DEVELOPMENT CENTER 'MY WAY' INC., And CHILD AND YOUTH DEVELOPMENT CENTER 'YIY WAY' INC., · Decision and order. Plaintiffs, - against - Index No. 526189/18 ALYO!\A BADALOVA, Defendant:, ---------------------------------------x PRESEN"': HON. LECN RUCHELSMAN January 22, 2019 11\J ~ ·-::l- The plaintiff has moved pursuant to CPLR §6301 seeking to restrain the defendant from paying any corporate funds to herself and for an order lowing the plaintiff to inspect the books and records of the corporation. The defendant opposes the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination. On January 17, 2014 the plaintiff Elina Khanukov and defendant Alyona Badalova entered into a shareholder agreement whereby each of them would be fifty percent owners of an entity entitled Development Center My Way Inc. An accompanying 'Unani~ous Written Consent of the Board of Directors of Development Center 'My Way' Inc., dated the previous day acknowledged an investment from the plaintiff in the amount of $186,000. An Investment Agreement signed by both parties the same day as the shareholder agreement identified the plaintiff as an investor and noted that •the investor is a silent· investor and • 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 01/29/2019 INDEX NO. 526189/2018 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/30/2019 will not participate in a day-to-day manager.tent of the Corporation. The investor acknowledges that she was ~dvised of the Corporation management rules" (see, Investment Agreement, t4). The plaintiff has accused the defendant of not sharing rel~vant profits and consequently now seeks to. examine the books and records. This motio:-i seeks to compel the defendant to allow such inspection and to further prevent the defendant from making any further payments to herself or her family members until a proper accounting can be made. Conclusions of Law It is well settled that to obtain a preliminary injunction the moving party must the merits, (1) a likelihood of success on demonstrate~ (2) an irreparable injury absent the injunction; and (3) a balancing of the equities in its favor (Vo:unteer Fire Association of Tappan, Inc .. v. County of Rockland, 60 AD3d 666, 883 NYS2d 706 [2d Dept., 2009]). In this case the basis the injunction is grounded in the fact it is alleged the failure to grant such rel will cause harm to the p:aintiff since it is alleged the defendant is no properly dividing any.profits. course, the defendant den Of s these underlying facts supporting the injunctive relief and indeed there is disputed evidence presented supporting those allegations. Thus, whi it is true that a preliminary injunction may be granted where some fac;ts are 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 01/29/2019 INDEX NO. 526189/2018 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/30/2019 in dispute and is still apparent the moving party has a liX:elihood of success on the merits, (see, Borenstein v. Rochel Proper::ies, 176 AD2d 171, '574 NYS2d 192 [Pc Dept., 1991]) some evidence of likelihood of success must be presented. Therefore, when "key facts" are in dispute and the basis for the injunction rests upon "speculation and conjecture" the injunction must be denied (Faberge International -nc., v. Di Pino, 109 AD2d 235, 491 NYS2d 345 [l5' Dept., 1985]). In case the plaintiff has not presented any specific evidence they have a likelihood of success on their claims. The plaintiff alleges she is a fty percent shareholder of the corporation and tha,t the defendant is not dividing the profits equally. st, there has been no ~vidence supporting the contention she has not been provided with any profits. Other than conclusory assertions, there has been no proof the defendant has continued to "siphon off funds of tr.e company while her investor partner is kept blind.as to ::he company's finances" (see, Affirmation in Support,, ~1[10). Thus, simple accusations are insufficient to grant a preliminary injunction. Moreover, even if true, tie p:aintiff has not preseµted any evidence why the failure to grant an injunction wou:d result in any irreparable harm. If true the harms alleged are merely monetary in nature and are not a proper bas injunct~on. upon which to obtain a preliminary The defendant asserts the plaintiff is not entitled 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 01/29/2019 INDEX NO. 526189/2018 . NYSCEF DOC. NO. 26 ... ' RECEIVED NYSCEF: 01/30/2019 to examine any books and records in any event. Whil• that issue is not presently. before the court, further litigation might demonstrate sufficient basis to prevail upon those claims 9r.in this lawsuit. Nevertheless, the evidence falls 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]). Therefore, since the facts are in serious dispute (see, Advanced Digital Security Solutions Inc .. v. Samsung Techwin Co. Ltd., 53 AD3d 612, 862 NYS2d 551 [2d Dept., 2008]) the motion seeking a preliminary injunction is denied. So ordered. ENTER: DATED: January 22, 2019 Brooklyn N.Y. Hon. JSC .. chelsman ...... = ""' <... :»> :z N> '° :l» 4 of 4 zCl (/) 0 -no ;::c ·....,z o-1· :it -< U) (') .J:" ·O m .. 4 :;.": .- '°:><

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