Red Pine Hospitality Partners LLC v Shtromandel

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Red Pine Hospitality Partners LLC v Shtromandel 2021 NY Slip Op 32730(U) December 20, 2021 Supreme Court, Kings County Docket Number: Index No. 522968/21 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 12/20/2021 04:53 PM INDEX NO. 522968/2021 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 12/20/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL PART 8 - - .. - - - - . -------------- - --- - - - - - .. - - X RED PINE HOSPITA LITY PARTNERS LLC, Petitio ner, - agains t 611 DEGRAW LLC, fill ANDEL, ALEC SHTROM GREENW ICH STREET INC., R DEGRAW INVESTO EQUITI ES, LTD.; and YAK0V SHTROMANDEL, a/k/a JACOB SHTROMANDEL, Respon dents, - . ------·- ·x ----.. --.. ... ----.. ·-. ----------··PRESEN T: HON. Decisio n and order Index No. 522968 /21 Decem~ er 20, 2021 LEON RUCHELSMAN The petitio ner has moved pursua nt to CPLR §5225 seeking the turnov er of tertain assets held by the respon dent Aleb Shtrom andel. The respon dents oppose the motion . submit ted by the partie s ahd argume nts held. Papers were After review ing all the argume nts this court now makes the followi ng determ ination . On April 9, 2021 this court granted the petitio ner's motion seeking summar y judgem ent in lieu of a compJa int regard ing a promis sory note execute d by the respon dent Alec Shttom andel. On July 12, 2021 the court denied the respon dent's motion seeking to void enforce ~ent of the judgem ent on the ground s the riote was usuriou s. Therea fter, the petitio ner insti tilted this . specia l proceed ing seeking the turnov er of money or proper ty to the petitio ner or the sherif f. The first cause of action seeks the turnov er of funds he.1d by 611 Degraw Investo r Inc., and Greenw ich Street Equiti es, Ltd., which are both who:Lly owned by Alec Shtrom andel. The second cause of action seeks the turnov er of pledged collat eral to the sherif f, such collat eral being the 1 of 6 [*FILED: 2] KINGS COUNTY CLERK 12/20/2021 04:53 PM INDEX NO. 522968/2021 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 12/20/2021 shares in entitie s called 611 Degraw Invest or Inc., and 611 Degraw LLC pledge d as part of the loan the respon dent obtaine d ftoin the petitio ner. The third cause of action seeks the turnov er of such collat eral to the petitio ne"r. The fourth cause o.f action seeks the turnov er of money to the petitio ner. The fifth cause of action seeks to void the tran_sf er of proper ty located at 424 Dorche ster Way, Manala pan, New Jersey on the ground s such transf er was fraudu lent. The petitio n was amende d on Novemb er 9; 2021 adding a cause of action to vacate transfe rs as vio.lati ons· of DCL §27 6. Specif ically, the amende d peti ti:on asserts that in March 2018 the respon dent Shtrom andel assigne d his intere sts in 611 Degraw Invest or Inc., and 611 Degraw LLC to Victor Yenyk whereb y Yenyk became the 100% owner of 611 Degraw Invest or Inc. , and a 44. 1% owner of 611 Degraw LLC. The amende d petitio n allege s the assignm ent was fraudu lent. The amende d petitio n also seeks a declar atory judgem ent that any Yenyk were void. transfe rs to Lastly , the amende d petitio n seeks an injunc tion preven ting the respon dents frorri. furthe r transf erring the proper ty. The respon dents oppose the petitio n and presen ted four argume nts. First, the respon dents argue the relief must be d~nied becaus e it is not suppor ted by any affida vit of a party. Next, the respon dents argue the plaint iff has failed to presen t any evidenc e of a perfec ted securi ty intere st in 611 Degraw LLC. 2 2 of 6 [*FILED: 3] KINGS COUNTY CLERK 12/20/2021 04:53 PM NYSCEF DOC. NO. 73 INDEX NO. 522968/2021 RECEIVED NYSCEF: 12/20/2021 Next, the respon dents argue the. purpor ted sale of the Lastly , respon dent's intere st ort August 12, 2d21 was a nullity '. concer ning the transf er of 424 Dorche ster, the respon dents argue such transfe r was proper . Conclu sions of Law Where the materi al facts at issue in a case are in dispute sununary judgme nt cannot be granted {Zucke rmanv. City of New York; 49 NYS2d 557; 427 NYS2d 595 [1980] ). Genera lly, it is for the jury, the trier of fact to determ ine the legal cause of any injury , howeve r, where. only one conclu sion may be drawn from the facts then the questio n of legal cause may be decieie d by the trial coutt as a matter of law {Marino v. Jamiso n, 189 AD3d 1021, 136 NYS3d 324 [2d Dept., 2021); Prelim inarily , an attorne y affirm ation that is not based upon person al knowle dge is insuffi :cient to meet a prima facie burden esta:Ol ishing an enti tlemeri t to summar y judgem ent as .a matter of law (United Specia lty Insuran ce v. Columb ia Casual ty Compan y, 186 AD3d 6'50, 129 NYS3d 510 [2d Dept., 2020]) . The motion seeking the turnov er is based solely on the petitio n itself as well as variou s accomp anying docume nts. In Danford v. City of Syracu se, 2012 WL 4006240 [N. D. N ;Y. 2012] the court held that an attorne y verific ation: utilize d for purpos es of CPLR §3020(d ) (3) does not thereby transfo rm the pleadin g into art affirm ation suffic ient to satisfy summar y judgem ent. J 3 of 6 This is [*FILED: 4] KINGS COUNTY CLERK 12/20/2021 04:53 PM NYSCEF DOC. NO. 73 INDEX NO. 522968/2021 RECEIVED NYSCEF: 12/20/2021 re the ·citt orne y does not par ticu larl y true , the cou rt note d, whe the case but rath er have pers ona l know ledg e of the fact s of The ver ific atio n of the atto rney iri this seco nd hand know ledg e. peti tion date d Nove mber 9, case acco mpa nyin g the ver ifie d amen ded e is the file 2021 stat es tha t "the bas is of my know lecig this mat ter" (see , mai ntai ned by my offi ce in con1 1ect ion with Atto rney Ver ific atio n, <J[ 3). Inde ed, pla inti ff's counsE31 cann ot ss such coun sel was have · pers ona l know ledg e of the fact unle peti tion occu rred pres ent when the even ts givi ng rise to the ' ' note · 5). {Da nfor d v. City of Syra cuse , supr a, Foot for the sake of Turn ing to the sub stan tive issu es rais ed; Of the argu men ts com plet enes s and to prov ide a full reco rd ent Alec : pled ged his rais ed, ther e is no que stio n the resp ond own ersh ip of shar es in 611 Degraw LLC. The peti tion er argu es the pled ged coll ater al that purs uan t to the pled ge agre eme nt an even t of defa ult and wou ld be deli vere d to the pet itio ner upon Code at all, thus , this does not invo lve the Unif orm Com merc ial ing date was ther e can be no ana lysi s whe ther the clos com mer ciall y reas ona ble. How ever , Sec tion J(d) of the Pled ge all app ropr iate Agre eme nt stat es that ":upo n the filin g bf step s ri.ec essa ry to fina ncin g stat eme nts und er the Cod e, all crea ted by this Pled ge crea te, and per fect the sect irity inte rest and firs t perf ecte d as a vali d and con tinu ing firs t lien on -ral in favo r of Len der, secu rity inte rest in :the Pled ged Col late 4 4 of 6 [*FILED: 5] KINGS COUNTY CLERK 12/20/2021 04:53 PM NYSCEF DOC. NO. 73 INDEX NO. 522968/2021 RECEIVED NYSCEF: 12/20/2021 othe r claim s of prio r to all othe r liens , secu rity inte rests and Pledg e and the any $Ort what soev er will have been taken . This le as such agai nst secu rity inte rest crea ted hereb y are enfo rceab with resp ect to cred itors of and purc hase rs from Gran tor exce pt rity as a matt er liens or othe r inte rests acco rded a supe rior prio of law" (id). Thus , notw ithst andi ng the argum ent no such UCC ate ques tions sale was sche duled or is even nece ssary there not impl icate d at whet her, as peti tion er argu es, that ''the ucc is a11" (see, Reply Affir mati on,, '3l 44). uant to In Orde r to succ eed upon a cause of actio n purs tran sfero r made a Debt or Cred it.or Law §276 it must be alleg ed the defra ud: eithe r tran sfer with actu al inten t to hind er, delay or , 51 Misc 3d pres ent or futur e cred itors (Picc arret o v. Mura Coi,m ty 2016 ]). 1230 (A), 2016 WL 3201 863 [Supr eme Cour t Monr oe Iio ques tions of The peti tion 11.as faile d to esta blish ther e are to the date of the fact whet her the tran sfer U1at occu rred prio r e cred itors . loan: was done with the inten t to defra ud futur The state ment s petit ion alleg es the respo nden t Alec made false conc ernin g his owne rship of 611 Degra w LLC. In the pledg e any and in this agree ment he asse rted he owne d 47% of that comp inte rests were ac.tio n has pres ente d evide nce those owne rship assig ned to Yeny k prev ious ly. could supp ort a Whil e those asse ttion s if true fraud claim they cann ot stand ing alone esta blish the peti tion er and the inten t to defra ud futur e cred itors such as 5 5 of 6 [*FILED: 6] KINGS COUNTY CLERK 12/20/2021 04:53 PM NYSCEF DOC. NO. 73 INDEX NO. 522968/2021 RECEIVED NYSCEF: 12/20/2021 thus const itute a fraudu lent transf er. There are surely questi ons of fact wheth er at the time the owner ship intere sts were assign ed there was the requi site inten t to defrau d any future credi tor or wheth er any fr:audu le_nt repres entati ons in the pledge agreem ent and other cl.oc::uments were the resul t of new schem es. The petiti oner also assert s the assign ment never even occurr ed and was contri ved merely to avoid the turno ver effor ts of U1is lawsu it. If that is true thE;n that fact surely under~ ines the entire claim for a fraudu lent transf er since while assert ing the respon dent is lying about the transf er is surely irnpro per behav ior, it conced es that no such trans fer occurr ed and that conse quentl y, there can be no cause of action pursu ant to Del:>tor Credi tor Law §276. Lastly , the petitr oner has conced ed the trans fer of the r Dorch ester prope rty may not have been fraudu lent and that furthe discov ery is necess arya There fore, at this junctu re the court canno t enter tain the motion seekin g summa ry judgem ent, both £or proce dural and substa ntive ground s and such motion is denied witho ut prejud ice at this time So ordere d, ENTER : DATED: Decem ber 20, 2021 Brook lyn N.Y. Hon. Leon Ruche lsman JSC 6 6 of 6

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