Board of Mgrs. of the 15 Union Sq. W. Condominium v BCRE 15 Union Sq. W. LLC

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Board of Mgrs. of the 15 Union Sq. W. Condominium v BCRE 15 Union Sq. W. LLC 2022 NY Slip Op 31924(U) June 16, 2022 Supreme Court, New York County Docket Number: Index No. 162500/2015 Judge: Debra James 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. INDEX NO. 162500/2015 [FILED: NEW YORK COUNTY CLERK 06/16/2022 04:40 P~ NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 06/16/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA JAMES Justice ----------------------------------------------------------------- ----------------X BOARD OF MANAGERS OF THE 15 UNION SQUARE WEST CONDOMINIUM, 59 INDEX NO. 162500/2015 MOTION DATE MOTION SEQ. NO. Plaintiff, 06/15/2022 002 003 - V - BCRE 15 UNION SQUARE WEST LLC,MOSHE AZOGUI, ISSAC HERA, BCRE 15 USW HOLDINGS LLC,BCRE 15 USW SECOND LLC,BCRE 15 USW CORP, BCRE SERVICES LLC,BCS USA LLC, and BRACK CAPITAL REAL ESTATE USA CORP, DECISION + ORDER ON MOTION Defendants. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 44, 45, 46, 47, 48, 49,50,51,52,55,56 were read on this motion to/for DISMISS The following e-filed documents, listed by NYSCEF document number (Motion 003) 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93 were read on this motion to/for JUDGMENT - DEFAULT ORDER Upon the foregoing documents, it is ORDERED that to the extent that it seeks to dismiss the third cause of action for negligence, the fourth cause of action for fraud, fraud, the fifth cause of action for aiding and abetting and the sixth cause of action sounding in piercing the corporate veil and to dismiss the complaint in its entirety against defendants BCRE SERVICES LLC, BCS USA LLC, and BRACK CAPITAL REAL ESTATE USA CORP only, the motion of defendants to dismiss (motion sequence number 002) is granted, without 162500/2015 BOARD OF MANAGERS OF THE 15 vs. BCRE 15 UNION SQUARE WEST LLC Motion No. 002 003 [* 1] 1 of 5 Page 1 of 5 INDEX NO. 162500/2015 [FILED: NEW YORK COUNTY CLERK 06/16/2022 04:40 P~ NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 06/16/2022 opposition, and the third, fourth, fifth and sixth causes of action of the complaint and the complaint in its entirety as against BCRE SERVICES LLC, BCS USA LLC, and BRACK CAPITAL REAL ESTATE USA CORP only are dismissed; and it is further ORDERED to the extent that it seeks to dismiss the second cause of action for unjust enrichment against defendants MOSHE AZOGUI, ISSAC HERA, BCRE 15 USW HOLDINGS LLC, BCRE 15 USW SECOND LLC, and BCRE 15 USW CORP, the motion of defendants is denied; and it is further ORDERED that the complaint is dismissed in its entirety as against defendants BCRE SERVICES LLC, BCS USA LLC, and BRACK CAPITAL REAL ESTATE USA CORP only, with costs and disbursements to such defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of such defendants; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for the moving parties shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the 162500/2015 BOARD OF MANAGERS OF THE 15 vs. BCRE 15 UNION SQUARE WEST LLC Motion No. 002 003 [* 2] 2 of 5 Page 2 of 5 INDEX NO. 162500/2015 [FILED: NEW YORK COUNTY CLERK 06/16/2022 04:40 P~ NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 06/16/2022 court's records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further ORDERED that the motion of plaintiff to strike the answer of defendant BCRE 15 UNION SQUARE WEST LLC for its failure to produce discovery, and to enter a default judgment against defendants BCRE, MOSHE AZOGUI, ISSAC HERA, BCRE 15 USW HOLDINGS LLC, BCRE 15 USW SECOND LLC, BCRE 15 USW CORP., BCRE SERVICES LLC, BCS USA LLC and BRACK CAPITAL REAL ESTATE USA CORP. the complaint for their failure to answer (motion sequence number 003) is denied; and it is further ORDERED proceedings that the in this cross motion action until of defendants to stay the resolution of motion sequence number one is dismissed, as moot, and it is further ORDERED that, within twenty (20) days of service of this order with notice of entry, defendants MOSHE AZOGUI, ISSAC HERA, BCRE 15 USW HOLDINGS LLC, BCRE 15 USW SECOND LLC, shall serve their answer(s) and BCRE 15 USW CORP to the complaint; and it is further 162500/2015 BOARD OF MANAGERS OF THE 15 vs. BCRE 15 UNION SQUARE WEST LLC Motion No. 002 003 [* 3] 3 of 5 Page 3 of 5 INDEX NO. 162500/2015 [FILED: NEW YORK COUNTY CLERK 06/16/2022 04:40 P~ NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 06/16/2022 ORDERED that counsel are directed to post on NYSCEF a proposed compliance order(s) conference order or proposed compliance at least two days before August 4, 2022, conference on which date counsel shall appear via Microsoft Teams, unless such appearance be waived by the court. DECISION With respect to the viability of the second cause of action of unjust enrichment against defendants MOSHE AZOGUI, ISSAC HERA, BCRE 15 USW HOLDINGS LLC, BCRE 15 USW SECOND LLC, and BCRE 15 USW CORP (Sponsor Defendants), who are non-signatories to the Offering Plan, the facts alleged in the complaint at bar are distinguishable from those in Bellino Schwartz Padob Advertising, (l3t Inc v Solaris Marketing Group, Dept 1995). Inc, 222 AD2d 313 In affirming the trial court's dismissal of the unjust enrichment claim against defendant Titan, the nonsignatory to the contract in that case, the First Department found "The record reveals that Titan did not unjustly benefit from plaintiff's work since Solaris, rather than Titan, had produced commercials and placed and aired television commercials containing plaintiff's advertising materials". In contrast, the complaint before the court is replete with factual allegations that the Sponsor Defendants unjustly profited, receiving windfall benefits from the conversion of the Building. 162500/2015 BOARD OF MANAGERS OF THE 15 vs. BCRE 15 UNION SQUARE WEST LLC Motion No. 002 003 [* 4] 4 of 5 Page 4 of 5 INDEX NO. 162500/2015 !FILED: NEW YORK COUNTY CLERK 06/16/2022 04 :40 PM! NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 06/16/2022 With respect to the motion of plaintiff to strike the answer of defendant BCRE 15 Union Square West LLC for its failure to comply with the directives set forth in the preliminary discovery conference entered on March 15, 2021, the filing of the motion of defendants to dismiss the complaint (motion sequence number 002) on March 1, 2021, stayed discovery pursuant to CPLR 3214(b). As there was no reference to the motion to dismiss in the preliminary discovery conference order, it cannot be said that the court ordered "otherwise". Likewise, as to the motion of plaintiff to enter a default judgment, the moving defendants were procedurally unable to serve answer(s) during the pendency of their motion to dismiss the complaint. P-~ fl-}~ 20220616141702DJAMES0B8070C036694A78B7BB4B4530DB924C 6/16/2022 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: DEBRA JAMES, J.S.C. ~ CASE DISPOSED GRANTED • NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 162500/2015 BOARD OF MANAGERS OF THE 15 vs. BCRE 15 UNION SQUARE WEST LLC Motion No. 002 003 [* 5] 5 of 5 • • OTHER REFERENCE Page 5 of 5

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