1467 Bedford Holdings LLC v Spitzer

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1467 Bedford Holdings LLC v Spitzer 2021 NY Slip Op 30302(U) February 1, 2021 Supreme Court, Kings County Docket Number: 517788/2019 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 02/01/2021 02:59 PM INDEX NO. 517788/2019 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/01/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 ------------------------------------------x 1467 BEDFORD HOLDINGS LLC, GEMCAP EQUITY CORP., & MAZEL EQUITIES GROUP LLC, Plaintiffs, - against - Decision and order Index No. 517788/2019 JOEL SPITZER a/k/a ELLIOT SPITZER and COBBLESTONE EQUITY LLC, Defendants, ------------------------------------------x PRESENT: HON. LEON RUCHELSMAN February 1, 2021 The defendant has moved pursuant to CPLR §2221 seeking to reargue a portion Specifically, the of a decision defendants dated sought to December allow two 10, 2020. proposed intervenors to intervene in the action and to deem the proposed answer served accepted as the answer. motion. The plaintiff opposes the Papers were submitted by the parties and after reviewing all the arguments this court now makes the following determination. As recorded in the prior order, on December 5, 2013 the entity 1467 Bedford Holdings LLC was formed and it is owned by three entities, Gemcap Equity Corp., 50%, Mazel Equities Group LLC, 25% and Cobblestone Equity LLC, 25%. The purpose of the entity was to acquire, develop and maintain property located at 1467 Bedford Avenue in Kings County. Pursuant to the Operating Agreement the managers of the entity are Judah Zelmanovitz and Sam Wieder (see, Operating Agreement, §5). In the prior order the court granted an injunction preventing defendant Spitzer from acting as a manager. 1 of 4 The court did not [*FILED: 2] KINGS COUNTY CLERK 02/01/2021 02:59 PM INDEX NO. 517788/2019 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/01/2021 specifically address defendant’s motion seeking the intervention of two parties or the acceptance of the answer. The court did hold that the landlord tenant action had been discontinued but did not specifically rule upon the defendant’s requests. This motion seeks resolution of those requests. Conclusions of Law It is well settled that pursuant to CPLR §1012(a)(2) a party may intervene as a matter of right “when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment” (id). The Court of Appeals has explained the right of intervention as available only where the judgement will bind the potential intervenor “by its res judicate effect” (Vantage Petroleum v. Board of Assessment Review of the Town of Babylon, 61 NY2d 695, 472 NYS2d 603 [1984]). definition was further refined to cases where the That potential intervenor is in “privity” with the parties to the lawsuit (Green v. Sante Fe Industries Inc., 70 NY2d 244, 519 NYS2d 793 [1987]). Thus, a party demonstrating a possible legitimate ownership interest in property may intervene in a real tax property lien case (NYCTL 1999-1 Trust v. Chalom, 47 AD3d 779, 851 NYS2d 211 [2d Dept., 2008]). interest in However, where the potential intervenor has no either the real property or the outcome of the litigation then the motion seeking intervention should be denied 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 02/01/2021 02:59 PM INDEX NO. 517788/2019 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/01/2021 (Citibank N.A. v. Plagakis, 8 AD3d 604, 779 NYS2d 576 [2d Dept., 2004]). The two potential intervenors are an entity called Triboro Realty Asset Management LLC and an entity called Alpha Space LLC. Both entities are owned by defendant Spitzer. Triboro had acted as managing agent and claims money is owed. Alpha was a tenant and was the subject of a landlord tenant action that has since been discontinued. The complaint in this case alleges breach of contract against Spitzer for allegedly violating the operating agreement, trespass against Spitzer, tortious interference with contract, conversion, breach of judgement and permanent injunction. fiduciary duty, declaratory Concerning Triboro, even if Spitzer has claims for offsets or payments that does not mean that Triboro is a necessary party in this action. Triboro may assert have nothing allegations against Spitzer at “necessary” in any legal way. whatsoever all. Surely, Any claims that to do with Triboro the is not Likewise, concerning Alpha, the landlord tenant action has been discontinued and any claims Alpha has for improvements do not touch upon the claims of this action at all. Again, Alpha is not a “necessary” party to an action that essentially argues Spitzer acted improperly. Therefore, the motion to permit intervention is denied. Concerning the proposed amended complaint the plaintiffs asserted that intervention is not necessary since Spitzer can 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 02/01/2021 02:59 PM INDEX NO. 517788/2019 NYSCEF DOC. NO. 83 pursue RECEIVED NYSCEF: 02/01/2021 any complaint claims should possibility for he may have not be Spitzer to yet argue accepted pursue his the thereby the need for foreclosing The claims. reviewed the amended complaint including the affirmative defenses. proposed amended court any has counterclaims and They support Spitzer's assertions without any intervention of any of those other entities. Indeed, Mr. Spitzer should be given an opportunity to pursue his claims. Therefore, the portion of the motion seeking to· deem the amended complaint served and filed is granted. So ordered. ENTER: DATED: February 1, 2021 Brooklyn N.Y. Hon. Leon Ruchelsman JSC 4 of 4 4

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