Grgurev v Licul

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Grgurev v Licul 2019 NY Slip Op 32951(U) October 4, 2019 Supreme Court, New York County Docket Number: 157551/2019 Judge: Andrew Borrok 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] NEW YORK COUNTY CLERK 10/07/2019 09:32 AM] NYSCEF DOC. NO. 53 INDEX NO. 157551/2019 RECEIVED NYSCEF: 10/07/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ANDREW BORROK IAS MOTION 53EFM Justice ----------------------------------------------------------------- ----------------X OMER GRGUREV AND FERDO GRGUREV, AS MINORITY SHAREHOLDERS EACH OWNING 25% OF ALL OUTSTANDING SHARES OF OCINOMLED, LTD, INDEX NO. MOTION DATE MOTION SEQ. NO. 157551/2019 10/04/2019 001 Plaintiff, -vMILAN LICUL INDIVIDUALLY, AND AS THE HOLDERS OF 50 PERCENT OF ALL OUTSTANDING SHARES OF OCINOMLED, LTD., AS ACTING OFFICERS, DIRECTORS AND CONTROLLING SHAREHOLDERS OF OCINOMLED, LTD., BRAN KO TURCINOVIC INDIVIDUALLY, AND AS THE HOLDERS OF 50 PERCENT OF ALL OUTSTANDING SHARES OF OCINOMLED, LTD., AS ACTING OFFICERS, DIRECTORS AND CONTROLLING SHAREHOLDERS OF OCINOMLED, LTD., OCINOMLED, LTD., ANTHONY ANTONELLO, THE HARTFORD LIFE INSURANCE COMPANY DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,23,24,48,49, 50, 51,52 were read on this motion to/for INJUNCTION/RESTRAINING ORDER For the reasons set forth on the record (10/04/2019) and as otherwise set forth below, Omer Grgurev and Ferdo Grgurev's motion for a preliminary injunction against Milan Licul and Branko Turcinovic is denied. Omer Grgurev and Ferdo Grgurev move by order to show cause for an order (i) directing Milan Li cul to permanently remove his name and address from Hartford Life Insurance Company's files as the contact person and mailing address for life insurance Policy No. U06030982 (the Policy), insuring the life of Omer Grgurev, (ii) directing Milan Li cul to permanently refrain from 157551/2019 OMER GRGUREV INDIVIDUALLY, vs. MILAN LICUL INDIVIDUALLY, Motion No. 001 1 of 4 Page 1 of4 [*[FILED: 2] NEW YORK COUNTY CLERK 10/07/2019 09:32 AM] NYSCEF DOC. NO. 53 INDEX NO. 157551/2019 RECEIVED NYSCEF: 10/07/2019 contacting Hartford regarding the Policy hereafter, and (iii) directing Milan Licul to distribute all future taxable income to Omer Grgurev and Ferdo Grgurev which Ocinomled, Ltd. reports to the IRS on K-1 forms. Omer Grgurev and Ferdo Grgurev further seek an order directing that (a) Milan Licul shall execute and date the reinstatement application regarding the Policy immediately and deliver the same to Omer Grgurev and Ferdo Grgurev' s counsel, (b) Milan Licul and Branko Turcinovic shall immediately release $990,612 from Ocinomled, Ltd.' s bank accounts representing the taxable income which they reported as having been distributed to Omer Grgurev and Ferdo Grgurev on IRS forms k-1from2013-2018, and (c) restraining the Hartford Life Insurance Company from exercising any rights regarding the Policy to allow its reinstatement period to expire on August 6, 2019, pending the hearing on the petitioner's motion. As an initial matter, the petitioners' application is barred under CPLR § 6301. CPLR § 6301 provides, in relevant part: A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiffs rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. No cause of action or claim for relief in the Amended Complaint concerns the Policy. Accordingly, the branch of the motion seeking a preliminary injunction relating to the Policy is improper and is denied (CPLR § 6301). 157551/2019 OMER GRGUREV INDIVIDUALLY, vs. MILAN LICUL INDIVIDUALLY, Motion No. 001 2 of 4 Page 2 of 4 [*[FILED: 3] NEW YORK COUNTY CLERK 10/07/2019 09:32 AM] NYSCEF DOC. NO. 53 INDEX NO. 157551/2019 RECEIVED NYSCEF: 10/07/2019 Putting that aside, Omer Grgurev and Ferdo Grgurev otherwise fail to establish (i) a likelihood of ultimate success on the merits, (ii) irreparable injury if the preliminary injunction is denied, and (iii) a balancing of the equities in their favor (1234 Broadway LLCv West Side SRO Law Project, 86 AD3d 18, 23 [1st Dept 2011]). With respect to likelihood of ultimate success on the merits, "[a] party seeking the drastic remedy of a preliminary injunction must establish a clear right to that relief under the law and the undisputed facts upon the moving papers" (Gagnon Bus Co., Inc. v Vallo Transp., Ltd., 13 AD3d 334, 335 [2d Dept 2004]). Omer Grgurev and Ferdo Grgurev fail to demonstrate a likelihood of ultimate success on the merits. First, the same parties in this case are involved in Ocinomled, Ltd., et al v Milan Lieu!, et al, 15 CV 9805, currently pending in the United States District Court for the Southern District of New York. This action was filed in 2015 and involves substantially the same claims and the same parties as the instant action. Pursuant to CPLR § 3211 (a) (4), a party may move to dismiss on the ground that "there is another action pending between the same parties for the same cause of action in a court of any state or the United States." Dismissal on this ground is not mandatory, but the court may do so as justice requires (id.). The "'first-in-time' rule provides that 'the court which has first taken jurisdiction is the one in which the matter should be determined"' (Fouad v Mohamed Emat Ezzat Mahmoud Magdy, 147 Ad3d 436, 437 [1st Dept 2017], quoting Syncora Guar. Inc. v JP. Morgan Sec. LLC, 110 AD3d 87, 95 [1st Dept 2013] [internal citations and quotation marks omitted]). Therefore, to the extent that the causes of action in this case are duplicative of those in the federal action, they are subject to dismissal on a motion to dismiss pursuant to CPLR § 3211 (a) (4). Accordingly, the petitioners cannot demonstrate a likelihood of ultimate success on the merits as to those claims. 157551/2019 OMER GRGUREV INDIVIDUALLY, vs. MILAN LICUL INDIVIDUALLY, Motion No. 001 3 of 4 Page 3 of 4 [*!FILED: 4] NEW YORK COUNTY CLERK 10/07/2019 09: 32 AMI NYSCEF DOC. NO. 53 INDEX NO. 157551/2019 RECEIVED NYSCEF: 10/07/2019 Moreover, with respect to the payments of distributions to the petitioners which were allegedly never received, potentially causing them to incur significant tax liabilities, the petitioners fail to establish that irreparable injury would result if the preliminary injunction were denied. On the contrary, there is currently no tax liability, making any such injury wholly speculative, and even if such tax liability should arise in the future, money damages would be an adequate remedy. Accordingly, it is ORDERED that the motion for a preliminary injunction is denied in its entirety; and it is further ORDERED that the respondents are directed to file an answer to the Amended Complaint or otherwise move to dismiss within twenty (20) days of the date of the decision and order herein. 10/4/2019 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 8 ANDREW BORROK, J.S.C. NON-FINAL DISPOSITION DENIED SETTLE ORDER GRANTED IN PART SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 157551/2019 OMER GRGUREV INDIVIDUALLY, vs. MILAN LICUL INDIVIDUALLY, Motion No. 001 4 of 4 D D OTHER REFERENCE Page4 of 4

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