Antebi v Guindi

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Antebi v Guindi 2020 NY Slip Op 30247(U) January 13, 2020 Supreme Court, Kings County Docket Number: 524776/2019 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 01/21/2 02 O] INDEX NO. 5247.76/2019 RECEIVED NYSCEF: 01/22/2020 NYSCEF DOC. NO. 24 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 ------------------------------------------x MORRIS ANTEBI, Plaintiffs, - against - Decision and order Index No. 524776/2019 RAYMOND GUINDI & ROYAL CHOICE DEVELOPMENT INC., Defendants, Y'c\J ~ ~ January 13, 2020 ------------------------------------------x PRESENT: HON. LEON RUCHELSMAN The plaintiff has moved pursuant to CPLR §6301 seeking a preliminary injunction staying the defenda.nt from making any distributions of any kind to any member of Royal Choice Development LLC. the The defendants oppose the motion. parties and arguments held Papers were submitted by and after reviewing all the arguments this court now makes the following determination. On June 21, 2007 the plaintiff entered into an agreement with defendants wherein the plaintiff loaned the defendants $750,000 to be used in the County. construction of a real estate project in Kings Pursuant to the terms of the ·agreement the money was to be paid back within two years. Further, the agreement provided the company would pay the plaintiff an additional $200,000 and that if the full amount was not repaid within two years then interest would accrue at a rate of 15% per year. There is no dispute the plaintiff was not repaid within two years and that in 2011 he was paid $75,000. Further, the defendants allege the plaintiff orally agreed to waive the right to seek any of the interest due and in fact had not requested the interest for six years. 1 of 5 By the end of [*[FILED: 2] KINGS COUNTY CLERK 01/21/2020] INDEX NO. 524776/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/22/2020 2014 the plaintiff was repaid the entire $750,000. The plaintiff instituted the current interest payments he alleges are compensation he claims he is owed. due as lawsuit well as seeking the the $200, 000 This motion seeking to enjoin the defendants from disbursing any funds has now been filed. Conclusions of Law CPLR §6301, as it pertains to this case, permits the court to issue a plaintiff preliminary has demanded injunction "in any action. . . and would be entitled to a where the judgement restraining defendant from the commission or the continuance of an act, which, action, if committed or continued during the pendency of the would produce injury to the plaintiff" (id) . A party seeking a preliminary injunction "must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of the injunction and a balance of the equities in its favor" (Nobu Next Door, LLC v. Fine Arts Hosing, Inc., 4 NY3d 839, 800 NYS2d 48 [2005], see also, Alexandru v. [2d Dept., 2009]). Further, Pappas, 68 Ad3d 690, 890 NY2d 593 each of the above elements must be proven by the moving party with "clear and convincing evidence" (Liotta v. Mattone, 71 AD3d 741, 900 NYS2d 62 [2d Dept., 2010]). Considering the first prong, establishing a likelihood of success on the merits, the plaintiff must prima facie establish a reasonable probability of success ·2 2 of 5 (Bar bes Restaurant Inc., v. [*[FILED: 3] KINGS COUNTY CLERK 01/21/2020] INDEX NO. 524776/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/22/2020 Seuzer 218 LLC, 140 AD3d 430, 33 NYS3d 43 [2d Dept., 2016)). In this case the basis for the injunction is grounded in the fact it is alleged the defendants have breached the agreement by failing to pay the interest due and the additional compensation of $200,000. Of course, the defendants deny these underlying facts supporting the injunctive relief and indeed the allegations are heavily and fundamentally disputed. Thus, while it is true that 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 evidence of likelihood of success Therefore, when must be presented. the basis for the injunction ~key facts" are in dispute and rests conjecture" the injunction must be denied Inc., v. Di Pino, Thus, 109 AD2d 235, upon "speculation and (Faberge International 491 NYS2d 345 [Pt Dept., 1985)). the Verified Complaint states the defendants agreed to pay plaintiff $200,000 plus interest beginning in 2009 and currently owes the Complaint, were plaintiff ~ 12). approximately $2,117,626 (see, Verified The defendants counter the interest payments expressly waived by the plaintiff. Generally, whether a waiver has taken place is a question of fact (Jefpaul Garage Corp., Presbyterian Hospital in City of New York, 458 [1984)). 61 NY2d 442, 474 NYS2d Further, a waiver is only possible if it was done, knowingly, intentionally and voluntarily and such waiver should not 3 3 of 5 [*[FILED: 4] KINGS COUNTY CLERK 01/21/2020] INDEX NO. 524776/2019 NYSCEF DOC. NO. 24 be RECEIVED NYSCEF: 01/22/2020 "lightly presumed" Tocqueville [2006]). Asset (Fundamental Management Portfolio Advisors L.P., 7 NY3d 96, 817 Inc., NYS2d v. 606 While the facts surrounding any such waiver, if it took place, must be explored, it must be noted that an addendum to the contract was signed on May 6, 2013 acknowledging the payment of $75,000 without any mention of any outstanding interest payments owed. While that does not establish a waiver it surely creates questions whether the plaintiff's failure to include those payments was indicative of a pattern waiving the payments. allegations may prove true, disputes at this Thus, while the juncture there are factual undermining the availability of any injunction. More importantly, even if the first prong could be satisfied, the second prong cannot be maintained. In order to satisfy the second prong of irreparable harm it must be demonstrated that monetary damages are insufficient (Autoone Insurance Company v. Manhattan Heights Medical P.C., 24 Misc3d 1229(A), 899 NYS2d 57 [Supreme Court Queens County, 2009]). The plaintiff damages. does not even allege anything other than money The plaintiff cites to Golden City Commercial Bank v. Hawk Properties Corp., 236 AD2d 282, 658 NYS2d 257 [Pt Dept., 1997] for the proposition that the dissipation of one's investment is a valid basis upon which to grant an injunction. and its companion case, However, that case, Board of Managers of the 235 East 22nd Street Condominium v. Lavy Corp., 233 AD2d 158, 649 NYS2d 688 [1st 4 4 of 5 [*[FILED: 5] KINGS COUNTY CLERK 01/21/2020] INDEX NO. 524776/2019 NYSCEF DOC. NO. 24 . . RECEIVED NYSCEF: 01/22/2020 ' Dept., 1996] concerned a unauthorized mortgage payoff prior violation of RPAPL §1354. to the foreclosure action where there was an tax payoff was to the payment of taxes in The ·court held the mortgage payoff prior in direct contravention of the law and consequently an injunction stopping the improper mortgage payment was appropriate since otherwise the tax lien could be rendered ineffectual. That in no way stands for the proposition that any time a money judgement might prove futile an injunction is proper. If true, an allegation of dissipation of funds would render the irreparable injury prong a mere formality. Thus, any alleged loss which can be compensated by money damages is not irreparable harm (Family Friendly Media Inc., AD3d 738, 903 NYS2d 80 v. Recorder Television Network, [2d Dept., 2010]). As noted, 74 since the plaintiff has not alleged anything other than monetary damages the plaintiff has failed to allege any irreparable harm. Therefore, based on the foregoing, the motion seeking ,......, preliminary injunction enjoining the defendants is denied. a;. ••\i\' c::::> ........, tll-.11,. .. = r./> c; So ordered. ENTER: N DATED: January 13, 2020 Brooklyn N.Y. Hon. JSC 5 5 of 5 L~uchelsrnan w .~·

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