Francis v Meskin

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Francis v Meskin 2021 NY Slip Op 30773(U) March 1, 2021 Supreme Court, Kings County Docket Number: 523788/2018 Judge: Reginald A. Boddie 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 03/04/2021 INDEX NO. 523788/2018 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/12/2021 At an IAS Commercial Term Part 12 of the Supreme Court of the State ofNew York, held in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Borough of Brooklyn, City and State ofNew York, on the I •1 day of March 2021. PRESENT:: Honorable Reginald A. Boddie, JSC -------------------------------------------------------- -x ALFRED LARRY FRANCIS, individually, and as a member of 711 PARK PL REALTY LLC, suing in the rigr t of 711 PARK PL REALTY LLC, Index No. 523788/2018 Cal. No. 12, 13 MS 2, 3 Plaintiffs, -against- DECISION AND ORDER ALEXANDR.4 MESKIN, JACK PERLAMUTER, and QUALIT\f REAL TY ASSOCIATES LLC, Defend ants. ------------------------------------------------------------x Papers MS2,3 Numbered Docs. # 13-36 .•... ·..... 5 Upon the foregoing cited papers, the decision and order on plaintiffs' and defendantf"' motions is as follows: Plaintiff 711 Park Realty LLC (711 Park), a company formed to purchase and hold real estate, purchased Unit IA at 1448 Bedford Avenue, Brooklyn, New York (the subject property) on May 1, 2015, for $425,000. 711 Park is governed by the April 30, 2015 operating agreement between plain iff Alfred Larry Francis (Francis) and defendant Alexandra Meskin (Meskin), wherein they J ere each identified as 50% owners, members and operating managers of 711 Park. Plainti fs alleged Francis and Meskin made capital contributions to 711 Park in the sum of $78,500, and IMeskin acted as a straw owner for her brother, defendant Jack Perlamuter (Perlamuter), l hose credit history was poor. Plaintiffs alleged Meskm did not invest her personal monies, but inJ ead acted as a conduit through which Perlamuter made an investment in 711 Park. On May 1, 2015, 711 Park borrowed $340,000 from 1448 Bedford Funding L.P. (Bedford 1 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 03/04/2021 c:=========~~~~------------NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/12/2021 INDEX NO. 523788/2018 Funding). Bedford Funding secured the 11ote by a mortgage on the premises, a personal guarantee by Francis, Meskin, and Perlamuter, and the filing of_a UCC-1 Financing Statement. PerlamUter O\\'ns Quality Realty Associates LLC (Quality Realty). On May 13, 2015, Quality Realty!entercd into a five-year commercial lease with 711 Park for Unit lA at the subject premises to op~rate a real estate office, commencing June 1, 2015, and expiring on May 31, 2020. Plaintiffs alleged defendants defaulted in paying rent owed pursuant to the lease and caused them to default on :their loan from Bedford Funding. Bedford Funding commenced a foreclosure proceeding on July 21, 2017, Index 514135/2017. Plaintiffs alleged Meskin attempted to transfer her membership interest in 711 Park to Perlamuter in 7015, in breach of the operating agreement, and averred the transfer was therefore invalid. Plaint~ffs denied Perlamuter has any right to participate in or manage the affairs of 711 Park1 and alleged th8-t Meskin has neglected her duties to 711 Park and retains her membership and 50% ownership in the company. They further alleged Meskin refused to enforce the lease against Perlarriuter and Quality Realty and conspired with them to steal 711 Park's corporate opportunity to'rent the unit to a paying tenant. Plaintiffs commenced this action on November 27, 2018, alleging breach of fiduciary duty, fraud and breacl1 of contact against Meskin, and aiding and abetting breach of fiduciary duty against Perlamuter arid Quality Realty. On November 30, 2018, 711 Parle commenced a su1runary nonpayment p~oceeding in Part 52 of the Civil Court, Kings County, captioned 711 Park Pl Realty LLC v Quality Realty Associate$. LL'C et. al., bearing IndexNumber93687/2018J which was stayed upon the signitig of defendants' Order to Show Cause (MS 2) by· the Honorable Debra Silber on October 11, 2019. By order dated April 10, 2d19, this Court dismissed defendants' counterclahns in their entirety. 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 03/04/2021 ..... ~-----------------------~ NYSCEF DOC. NO. 40 - - - · - - - - - - - - · - - ·INDEX · - · ·NO. · · ·523788/2018 ·-··· RECEIVED NYSCEF: 03/12/2021 Perlamuter an'd Quality Realty moved by Order to Show Cause (MS 2), pursuant to CPLR 326 (a) and 6301, to Stay and enjoin the prosecution of the summary proceeding, and, pursuant to CPLR 325 (b) and 602 (b), to remove the Civil Court action to Supreme Court and consolidate it with the insta1lt case.' Plaintiffs opposed. On November 6, 2019, Justice Martin issued an order adjourning MS 2 in contemplation of a settlement of the u11derlying action and left the stay of the LT action in place. To date, that matter has not settled. However, the lease has expired negating the grounds fat a continued nonpayment action. Plaintiffs cro$s-moved (MS 3) for an order, pursuant to CPLR 6401, appointing a temporary recdiver to manage 711 Park's affairs pe11ding the resolution of this action and to take all steps necessary to collect rent from defendant Quality Realty Associates, LLC (Quality Realty) or another bon,a~fide:tenant for the use and occupancy of the subject premises, and pursuant to CPLR 6312 .(b) and 6315, directing defendants Meskin, Perlamuter, and Quality Realty to post a bond or undertaking ;in an amount to be detennined in the event this Court grants defendants a preliminary injllnction restraining plaintifffrom taldngany steps to dispossess Quality Realty from the subject prelnises. Plaintiff averred that pursuant to the lease, rent was abated for the first four months and the first payment of rent was due on October 1, 2015. The rent schedule provided monthly rent in the amounts of$3,533.3]:, $3,604.00, $3,676.08, $3,749.60, and $3,824.59 foryears one through five, respectively. :Defendants argued underthe express tenns of the lease and the parties' men1orandum of understandhi.g, Quality Realty's rent obligation was and continues to be abated, and under the self-executit1g 3.batement provision under the lease no rent was due until the rear area of the subject premises was I'.'ented. ·currently, the parties indicate that Quality Realty is no longer operating as a viable business at 1448 Bedford Avenue, Brooklyn, NY. 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 03/04/2021 INDEX NO. 523788/2018 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/12/2021 Accordr'·ngly, upon review of the papers, the arguments of the parties and the applicable law, both moti , ns are denied in their entirety and all stays are lifted. ENTER: Honorable Reginald A. Boddie Justice, Supreme Court HON. REGINALD A. BODDIE J.S.C. r., ,__ ·3 . . .~. ·s.. 4 4 of 4

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