Gelbfish v Russack

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Gelbfish v Russack 2021 NY Slip Op 32371(U) November 16, 2021 Supreme Court, Kings County Docket Number: Index No. 509846/2021 Judge: Ingrid Joseph 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 11/18/2021 08:51 AM INDEX NO. 509846/2021 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/18/2021 .\1 :m l:\S P:1rt in ol'the Suprellle ( ',1un ( JI' the SLill' ol'Nc,, \'nrk. lic'ld in and li1r the CPllllty nr f<.: in~~- at the ( 't1mtlll1tL,c'. ell Ci, ic ( ·enter. lln1ukh·11Nn, YPrk. Pll the I h1h da) l>f Non:mbcr. ::i.n:21. !'RI SI'< lll()N.l'<<iRIDJ<>SI-PILlSt SL l'RFr--.tL lUl RI OI Tf II ST.\ll rn :\I \\ YORI( COl :NI Y (JI.KIN( ,S - - - ·--- - - - -------- - ------ - ----- -- --- ------ - - - -- - --- - - --- -------- \. YLI IUD,\ Cill !'\FISH. Pbi111ill. -aµairht- ])[ ( 'ISH )N.l )RI)[ R 11<.\ l<l SS,\CK :111d S.\\1 Sl'RLI a. k :1 SI 11\11 Sl'Rl! aka I I I SI L\PIR< >_ lkkndant:-... ' - - - --- - --- - - --- -- - - ---- --- -- --- --- -- \: Ill-citation. a, required h, ( PLR ~22 l'>(a). of thl' papen n111~idl·red in the tT\ in, of partil·,' motion,: :\JYSCI F !\,i:-,_ P:IJXTS !\,1ticc t,1' \l,1ti1n1 i\lfomati()11/,\ffid,nits Fxhihib Ord('!' to SIHl\\ l',lllS<..' Cr,1ss t\lotion. -\nirmaliorr 1-,hibits ·\llllC".l'd ( )11pp,;iti1H1 .\t!irnu1in11 Fxliihits .\nncxcd 17 ""() - 10: ]2: -4() - :',"1, -1-f --f():)5 judgrncnt in lieu or n1111plaint pur~uant l\\ ( 'Pl .R ~ ,211 { \ lnll( 1 1l Seq. I) to cnl<.11cc judgn11._·nts ;1l.a I Ii Shapiro (rclelTL'd lo collcL'li,cly ;is "dctc·nd:111ts"i. jointly :ind SL'\'lTally. 111 a11 actitll\ c:1p(i(>lled 5218 .\1L1ntic \,·cm1c ·\ssuL·iatcs. I IC\ \1iriam l·quitic~ I .imilL'd I i:1hilit:, ('()mpany. ct al. Superior Court of New Jersey. Atlantic County. l,aw Division, l)ockct No. /\ TI,-1 .-139 l-l 9 ( ·-2019 New Jersey case'"). \Vherein the parties in the instant matter were co-defendants. Defendants submitted written opposition to the motion, filed an emergency application (Motion Seq. 2) and cross motion (Motion Seq. 3). seeking the same relief: (l) the issuance of a preliminary injunction and an order compelling plaintiff to arbitrate pursuant to CPLR 7503. 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 11/18/2021 08:51 AM INDEX NO. 509846/2021 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/18/2021 The parties in this lll~tltcr \\Cri__'. co-dclenJanls in the 201 i) Nl~\\ .kTSl') case. wherein thi__· phintilTs cross claims ;1g:1ins1 the defcnd,rnts resulted in an 1\pril 9. 2020 Order for Judgment (··the 2020 Judgment") in fa\\ir ol"plaintitl;rnd against the· ckli.:ndants.jointly :111d se\nall). for $252.000. \\ ith intere:;t accruing at a L1tc or 6')o. On Sq1kmhn I 6. 2020. the parties entered into a Consent Order for the payment of such _judgment with aecurnulateJ interest and reimbur:-;ement k,r pL1inli 1r:-; legal lees and Cllsls The Consent Order set out a payment .'ichedulc \Yith threshold cbtcs ti.ir the rcrnittancc (1!' funds until the Jehl is paid in full. zis well a'.-i the penalties that ,,uulJ accruc upon thl· dck·r1<..lant::; dcl'cndl. Therearter. the J<ew Jei·scy Court issued two additiorwl ()r,..krs in frtvor nf plaintiff and against thl· dclcndanls jointly and severally. The orders. dated h:hruary 2-L 2021 and \larch 2. 202 l. a warded plaintiff money j udgmc'.nts of$ l 5 _(JOO and $l)_--l-87 26, plus interest of 6<;;,_ respccti,cly. By t'urthcr order dated March 5, 20::: 1, thi; r--,.;e\\' kr'.-iC)' Court directed the dctcndants· then counsel, ;\lkn Ftish. F.sq., tu turn over to plaintiffs. :1ttorneys. the lirm or Ansell Ci-rimm & A.;uon. PC ccrtziin funcb held in trust totaling 532.--1-00. b\ attorney trust ctCl'\llllll In suppurt nl' his check or \Vire. lll(llilm. plaintiff contend:-; 1h:1t the rkfcncic1nts O\Ve (lll\Standing principal ol'S!29.600 un the 2020 Judgment. \\ith iak· t'c-cs ol S75.000 and interest totaling $1--l-.--l-.1h 82. Plziintiff alleges th:n the delend;mts also fr,iled to pay the $15,000 penalty that the '\Jew Jersey Court directed them to pay in the February 2--l-. 2(121. and the attorneys t\:-l'.s ol S9.--l-87.2(1 in Jcrnrdance with the \larch 2. 2021 order. PL1inti!Tcon(ends that the total sum outstanding is :j;.21 1.1.:>+ 08. as nl April .27. 2(f:' l. aJier all remittance by the defendants ha\'C hcl'.n applied. The defendants' counter argument, and the relief requested in their order to show cause and cross motion, is to stay this matter and compel plaintiff to arbitrate. However, the Heter Iska agreement that plaintiff relies upon is not fully executed, as it bears only the signature of Shimon 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 11/18/2021 08:51 AM NYSCEF DOC. NO. 57 INDEX NO. 509846/2021 RECEIVED NYSCEF: 11/18/2021 Ycchiel Sprei. The section reserved fr>r plaintiffs signature is blank, and, contrary to the defendant's contention, email correspondence shov.1ing that plaintiff reviewed the document and was asked to sign it, or that it was the defendant's custom and practice to sign such documents in prior transactions is insufficient to establish that the parties entered into a binding agreement to arbitrate. Since the defondants have failed to produce a signed Heter Iska, the court finds that they have failed to establish, by clear and convincing evidence, a likelihood of success on the merits. Additionally. there is no showing of irreparable injury or that a balancing of the equities weigh in favor of defendants (see Arthur .I Gallagher & Co. v Marchese, 96 AD3d 791 [2d Dept 2012J; llerc:=l v Feinsilver, 153 AD3d 1338 [2d Dept 2017J). Further. the dcfondants already requested an order staying plaintiff from enforcing the judgment and an order compelling arbitration in the New Jersey action and the court denied the application. Regarding plaintiffs motion, the court finds that the money judgments plaintiff has obtained in the New Jersey court are entitled to the same credit. validity, and effect in every other court of the United States pursuant to the full faith and credit clause of the United States Constitution (US Const.. Art. IV, § 1; Maner <?f Bennett, 84 AD3d 1365, 1367 [2d Dept 2011 ]). Since rclicfunderCPLR § 3213 encompasses ""any judgment," and, based upon this court's finding that the plaintiff has met his prima facic burden and the defendants have failed to raise a material issue of fact, the court finds that the plaintiff is entitled to summary judgment in his favor and against the defendants jointly and severally. Accordingly, it is hereby ORDERED. that plaintiff's motion for summary judgment in lieu of complaint (Motion Seq. I) is granted, and it is further 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 11/18/2021 08:51 AM INDEX NO. 509846/2021 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 11/18/2021 ( lRDFR!'.D. that plaintiff is awarded a judgment in thl· amount or $211.124.08. against the dcli.:mlanh. j( • intly and Sl·verally. basl·d upnn the Order For .ludgmrnl dated 1\pril 9. 2020. Consent ( lrder l'llt· Payment ,it· .ludgrncnl dakd Scph.'mbn I{1. 2020. Pn1poscd /sic/ ( )rdcr d,1tcd I cbruary 24. 2021, and Orlkr l·or Fees and ( \1sts dated f\brch 12. 202 l, and it is further ORDl·RFD. that all stays. if any. arc hereby lifted, and it is further Ol{DFRrD. that the dcl1_•11d;mt.,.;' Order to Show Cause (l'vlotiun Seq. 2) and Cross Ml1tion (Motion Seq. 1) arc denied. This constitutes the decision and unlcr or the court. f-lon. ngrid Josep'1 Supreme Court Just.ice 4 4 of 4

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