Rapisarda v Lifeline Ambulance Serv., Inc.

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Rapisarda v Lifeline Ambulance Serv., Inc. 2021 NY Slip Op 32544(U) December 1, 2021 Supreme Court, Kings County Docket Number: Index No. 515301/2020 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 12/02/2021 03:44 PM INDEX NO. 515301/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 12/02/2021 SUPREME COURT OF THE STATE OF. NEW YORK COUnT·Y OF I<:'IN:GS :· ·.¢IVIL TERM: COMMERCIAL PART. 8 ---- .-------------- -. - ·--. -------------- -------·x ALONZO. RAPISARbA; -RAP-IS-ARDA CORPORATE STOCK· TRUST; ·ANTHONY· R.APISARDA; G:RAcE and PAUL RAPISARDA; .JOHN RAPISARDA; :.B;APISARDA;-. D~cision and o~der Plaintiff·, Index Nb". 515:301/-2020 .,. . against - LIFELINE AMBULANCE SERVICE, INC.; UDER H_EALTH "MAN].\.QEMENT". LL_C; MARVIN RUBIN; SOLOMON RUB.IN; MOSES {a/Jc/a "Michael II) WERZBERGER; JOEL LANDAU; ELIMELECH RUBIN# antj MORD$CAI FElt, I)E;!. f. e.nda n_t s ., becern.ber 1; "2021 ----- .... -----.-- ---·- __ ,_______________ . ·--------x-. PRESENT: HON • LE.ON RUCHELSMA.N The. defendants have moved pursuant to CPLR §3025 seeking to anl°end the. ple·acting·s to assert counterc:La:Lm s. have- 9_ppol:!ed thEl motion.. The_ plai·ntiff-s Papers WEl;r-e su}:;)rnitted by the parties and after reviewing a.11 the arguments thls court now makes the f.o,llowing determinatio n. As recordeq in a prior o.:rder.,. on A,ugust .2:2, 20.18 the plaint;Lf f s and defendants entered into a sect1"ri ty pledge agreement whereby .the -p.-lq.int.iffs agreed to s.el). the'ii i_rtterest in defendant Lifelfne Ambulance Service Inc., fot two tnilli.on dolla-rs. That amount was to be pa:id in, .installments and was per-s.onally gua:r;arrt~ed by d_efenda.11ts. Joel L"andau·, Marvin Rubin, Moses Michael Werzberger, Mordecai Feig, Solomon Rubin and. Elimelech Rubin. A payment d1,1e .Ju:ne 10, ·:_20··19 was- not made c;l'.iid pu,rsuant_ to the. agx:eements the plaintiffs now seek the full ~rn9rint du~ of ~pproximatijl y $1J015,60tr and late tees of 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 12/02/2021 03:44 PM NYSCEF DOC. NO. 40 INDEX NO. 515301/2020 RECEIVED NYSCEF: 12/02/2021 approxitnately $20,000. The court denied art earlier motion seeking summary judgement in lieu of a complaint on the grounds there were questions of fact whether the plaintiffs frauduleri.tly induced the defendants to sign the agreement by inflating and misrepresenting the true value of the entity. The defendants now seek to assert two counterclaims alleging fraudulent inducement arid fraudulent misrepresentation. The plaintiffs oppose the request-. Conclusions of Law It is well settled that a request to amend a pleading shall be freely given unless 'the proposed amendment would unfairly prejudice or surprise the opposing party; or is palpably insufficient or patently devoid of merit {Adduci v. 1829 Park Place LLC, 17 6 AD3q 658, 107 NYS3d 690 [2d Dept., 2019]) . The decision whether to grant such leave is within the court's sound discretion: and such deterrninatiort will not lightly be set aside (Ravnikar v. Skyline Credit-Ride Inc., 79 AD3d 1118, 913 NYS2d 339 [2d Dept., 2010]) . Therefore, when eKercising that discretion the court should consider whether the party seeking the amendment was aware of the facts upon which the request is based and whether a reasonable excuse for any deiay has been presented an.ct w'he.ther any .prejudice will. result (Cohen AD3d 705, 833 NYS2d 542 [2d Dept., 20.07] ).• 2 2 of 4 v. Ho, 38 [*FILED: 3] KINGS COUNTY CLERK 12/02/2021 03:44 PM NYSCEF DOC. NO. 40 INDEX NO. 515301/2020 RECEIVED NYSCEF: 12/02/2021 It is further well settled that to succeed upon a claim of fraud it must be demonstrated there was a material misrepresentation of fact, made with knowledge of the falsity, the intent to induce reliance, reliance upon the misrepresentation and dam13-ges (Cruciata v. O'Donnell & Mclaughlin, Esqs,149 AD3d 1034, 53 NYS3d 328 [2d Dept., 2017]). These elements must each be supported by factual allegations containing details constituting the wrong alleged (see, JPMorgan Chase Bank. N.A. v. Hall, 122 AD3d 576, 996 NYS2d 309 [2d Dept., 2014]). Likewise, to state a claim for fraudulent misrepresentation the party must establish a misrepresentation of fact that was false when made for the purpose of inducing another to rely upon it and they justifiably relied upon it to their detriment (Mandarin Trading Ltd., v. Wildenstein, 16 NY3d 173-, 919 NYS2d 465 [2011]). Thus; the misrepresentation must corttern a present fact, not a future promise (see, Scialdone v. Stepping Stones Associates L.P., 148 AD3d 953, 50 NYS2d 413 [2d Dept., 2017]). The counterclaims proposed essentially assert the plaintiffs misrepresented revenµe earned by engaging in fraudulen't Medicare hilling practices which they knew were fraudulent. The counterclaii:ns state the. d,ef.en.ciants. reiied upon. those misrepresentations in agreeing to purchase the plaintiff c'omparties. The plaintiffs do not really substantive.ly oppose the 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 12/02/2021 03:44 PM INDEX NO. 515301/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 12/02/2021 motion exc::ept to note that the defendants reneged upon a proposed settlement which would have resolved all outstanding claims. However, even if true, that is not a basis Upon which to oppose allegations of fraud. The plaintiffs further argue the defendants waited an excessive amount of time in which to file the motion and t.hat somehow sUch delay is an attempt to "manipulate the judicial system at Plaintiffs' expense" (see, Affirmation in Opposition, However, that allegation, which '1[27). can only pe interpreted as prejudice, fail$ to explain why any delay in seeking the counterclaims actually resulted in any prejudice to the plaintiffs. This is particularly true since the court only rec::ently denied the motion seeking su:imnary judgement. Thus, discovery has only just begun, therefore, a motion seeking to assert .counterclaims cannot be deemed so late as to deny their potential merits. Therefore, the plaintiffs have failed to substantively demonstrate the proposed amendments have no merit. Consequently, the motion seeking to add these counterclaims is granted. so ordered. ENTER: · ~ DATED: December 1, 2021 ·Brooklyn ·N.Y. ~·6 Ho.n. Leon Ruchels.man .JSC 4. 4 of 4

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