Alsaidi v Alsaede

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Alsaidi v Alsaede 2022 NY Slip Op 32927(U) August 25, 2022 Supreme Court, Kings County Docket Number: Index No. 512191/20 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. INDEX NO. 512191/2020 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 08/30/2022 SUPREME COURT OF THE. STATE OF NEW YORK . . . . . COUNTY OF KINGS : CIVIL TERM: COMMERGIAL 8 --·--. ·- .-. ·-.---·- ... ---.------- .-·--·----- ---- .--x· KAMAL ALSAIDI, individua lly and derivativ ely on behalf of MOUNTAIN OF SABER, LLC., Plaintiff , -against- Decision and order Index No. 512191/20 ALI ALSAEDE, CAPITAL A MANAGEMENT TNC, ABDOALSAEDE, AHMED NASSER, and ABDO M. NASSER Defendant s, August 25, 2022 and MOUNTAIN OF SABER, LLC. NominaL Defendant , ---·--·-. ·------.. ------. --: - ·-- .. -------·--- ·--X PRESENT: !-ION. LEON RUCHELSMAN The plaintiff has moved seeking an injunction , the appointmer tt of a receiver and to dismiss countercla ims, defendant s oppose the motions. parties artd arguments held. The Papers were submitted by the After reviewing all the argumertts this court now makes the following determina tion. As recorded in a prior orders, property located at 797-815 Stanley Avenue in, Kings County was. owned by Abdo Alsaede. Tn 2005 Abdo Alsaede transferre d his ownership in the property to ai1 entity called Mountain of Saber LLC. According to the Operating agreement , Abdo retained a one third interest in the corporatio n, and the remaining ownership is as follows: the plaintiff Kamal Alsaidi owns a third, and brothers Ahmed and Abdo Nasser Owns. the final third. 'I'he de-fendant Ali Alsaede is the son of Abdo Alsaede and the cousin of the plaintiff . Thus, the plaintiff is a one third minority owner of Mountain of Saber LLC. [* 1] 1 of 7 The INDEX NO. 512191/2020 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 08/30/2022 .defendants have m~nageci. -and -maintained the properties since 200·5. The pla::i.nt:j_.ff has. alle._ge_d the_ .defenqants have. e1_1gc:1.g.ed in various improprieties since tl:len including failing to collect rents, misappr-opriat_ ii:1g funds_· and awa_±din-g_ themselves unearned fees. The complaint· alleges causes of action for breach of contri:l-ct, fraud, unjust enrichment and breach oi a fidµ.cia.1'.'y duty. The court s.usta.ined ma·ny o-.f the c.ause·s of act.ion and th_e plain..tif f ·has now moved, seeking injunctive relief, the appointment of a receiver anci to di;aJrniss counterclaim s filed by the defendants. ·T-1:lese ·.motions. are opposed as noted·-. Conclusions of Law Preliminarily , the motion seeking to dismiss the counterclaim s is timely. It is well settled that upon a motion, t.o dismiss the court must determine,. acc.e,ptin.g: the -alleg.at:.icins qf the counterclaim s as true, v,;hether the party can succeed upon any reaso:r'l."able view o;f those facts (Strujan v··. Kaufman 168 Ao3.4 i114-., aLlegations in 93 NYS3.d 334 [:2d Dept.., 2019] ) . & Kahn, LLP, Further, all the the couhterclaifn s are deemed true and all reason·able .inferences may be :drawn in favor o-f the party that filec;l. such c.ta.im.s (Fe.deral .National Mortgage Association v. Grossman, 205 AD3d 770, 165 NYS2d 892 [2d Dept., 2022]). the ·courtte-rclaim s w.i:11 l~te.r: surv-iye- -a motion for Whether su:mrirary judgment, or whether the party will ultimately be able to prove 2 [* 2] 2 of 7 INDEX NO. 512191/2020 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 08/30/2022 its claims~ .-of course, __plc1.y~. no pa·.r,--t in t_l'le de-terminati_o n of a p;te-'d_i.s_cove:ry CPLR §3211 motion t9 dismiss ( see, MoS:kowi tz v. "Masliansky, 198 A.D3d 637:, 155 NYS3d 414 [2021]}. ·It is ·well settled that a merg,_er clause wbich $.tate_s the agr1:;ernent :r:epresents the entire understanding between the parties is. "to require full app.lication o-f the parole· evidence rule in.- .qrder- ·to bar the ·introduction o'f extrinsic evidence to vary o-r contradict the terms o:E the. writing(i {Primex Internationa l Corp,. v. Wal-Mart. S.tcires Inc-.-, 89 NY-2d 59.4"; 6-57 NYS2d 385 [ 199'7] ) . I.n. this ca.se the operating agreement. states that ''this Agreern'?nt contains a complete sta:tement of all of th1:; arr.a:bgemerits .among the parties ·with. respect to the Company and cannot :-be changed or te_:rrrtirtated orally or in any manner other than by of written agreement exect1teci by _A.cjreement, A"rticl.e XIII (.B) [NYSCEF Doc. #"26]). all a the Members" ('.see, Opera:t.i.rig The. first two counterclaim s assert, essentially, that the plaintiff promised to give .th.e de·.£ endan.t. property in San_a., Yern~n in excha,n_ge f o·r the p:laintiff' s 33% share of the compa._ri:y anq ~11.at the o.the:r _members relied µpon .that promise. However, if :true, that p.t.omise is not contained w.i:thin the i:l.greernent i tse·lf and cannot, the ref ore, be considered.. While that promise does not c:ontr:adic:t:, any of the provisions of the operatin,g agreement,. c:ont:tadit:tio n is riot the governing. test whether such oral agre.ements -can c.h.ange any of tht;! Rath.er, parole evidence cannot terms of :the written agreement. 3 [* 3] 3 of 7 INDEX NO. 512191/2020 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 08/30/2022 that be used to modify or vary the terms of a written agreement contains a merger clause (HSBC Bank USA N.A. v. Strong Steel Door; 36 Misc3d l207(A), 954 NYS2d 759 [Supreme Court Kings County 2012]}. Indeed, Article VI(A) of the operating agreement states that "the Members have contributed to the Company in exchange for their membership interests, their cash interest and other property as set forth on Schedule A, annexed hereto'' (id) . However, the- operating agreement does not contain a Schedule A outlining the contril:mtions of any patty, There is a schedule C.3.lled 'Mountains of Saber LLC Member Information' which merely lists the names, addresses and percentages of ownership of each owner, including the plaintiff, but does not delineate any contribution amount at all. Thus, any promis_e regarding specific property located in a foreign co:untry is surely a matter not contained in the original operating agreement and cannot cause , , , any changes to the agreement. Moreover, there is no ambiguity regarding the agreement that might permit oral modifications {Goetz v. Trinidad, 168 AD3d 688, 91 NYS3d 513 [2d Dept.; 2019]). Therefo.r:e, the motion seeking to dismiss the first two counterclaims is granted. The third counterclaim, to the extent it is different from the first two counterclaims, alleges the plaintiff never paid ariy considera.tion at all for his membership interest and thus. is not First, that. is riot a an owner of Mount.ains of $aber., 4 [* 4] 4 of 7 INDEX NO. 512191/2020 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 08/30/2022 counterclaim, it is merely a defense. can be interpreted as a To the extent the defense declaratory judgement seeking a determination the plaintiff is not a member since no consideration has been paid, then such counterclaim would exist. First, the defense of lack of .consideration is personal to the parties to the cor1tract (see, Nash v. Duroseau, 39 AD3d 719, 835 NYS2d 611 [2d Dept.; 2007]). this defense. Thus, Ali has no standing to raise However, Abdo Alsaede as a member of the corporation has sw:h standing. The plaintiff, however, does hot present any concrete evidence establishing as a matter of law that any consideration was paid at all. Regarding consideration, which really permeates the first three causes of action, the plaintiff fails to present any evidence why this claim cannot be pursued. Although not presented within the ~otion tb dismiss the counterclaims, Abdo Alsaede submitted an affidavit dated January 9, 2021; relevant to other motions, wherein he acknowledged that a:s the sole owner of the property he created Mountains of Saber and transferred a one third interest in the company to the plaintiff at the direction of his son. Mr. Alsaede states that ''I never attained any money from Kamal Alsaidi, nor did he provide me any money or transfer of assets. It was at no time a gift to Kamai Aisaicli. I know of no money paid to my son from the Kamal Alsaidi as they worked out the terms themselves" (Affidavit .of Abdo Aisaede, .· .~ 4 [NYSCEF boq. #18]). 5 [* 5] 5 of 7 Thus, Abdo INDEX NO. 512191/2020 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 08/30/2022 fully admits that he transferred the one third interest to the plaintiff without any consideration at all upon the promise of future consideration. Whether that promise renders any consideration inadequate or whether a gift was really intended in any event are matters that will be resolved through discovery. Further, there may be other grounds, not contemplated here, regarding the membership status of the plaintiff. no basis td dismiss the third counterclaim. Thus, there is Likewise, the court has already held there are questions of fact whether the power of attorney allegedly signed by the plaintiff which permitted the . . defendant to, essentially, vote him out of the corporation, was authentic. That issve too must be .resolved through discovery. Therefore, there is no basis to dismiss this counterclaim either. Consequently, the motion seeking to dismiss the first two counterclaims is granted and the motion seeking to dismiss the third and fourth counterclaims is denied. Thus, before the court can entertain any motion regarding injunctions or the appointment of a reoeiver the question whethe·r the plaintiff is a member of the corporation and maintains standing to seek those rel~efs must first be answered~ Withbut resolving this issue the plaintiff cannot pursue equities where he may have hb standing. 1'hus, the question of whether the plaintiff gave any cons.ideratiori must be addressed. To further streamline this issue and not cause µnnecessary delay, within [* 6] 6 of 7 INDEX NO. 512191/2020 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 08/30/2022 thirty days of receipt o f this dec ision t h e plaintiff may f ile any motion seeking to es t ablish his sta tus as a member. The defendants may oppose t h e mo t i on and wil l have two weeks to file oppo sitio n . The p laintiff will h ave one week to fi le a r eply. There will be no adjournments or extensions to t his time line unless all parties consent. The parties are directed to rea ch out to th e court when a ll papers a r e s ubmitted . Th u s, the motions seeking an in j unction and a r ece iver are no t decided at this time. So o r d ered. ENTER : DAT ED: Augu st 25 , 2022 Broo kl yn NY 2 Hon . Leo n Ruch e l sman JSC 7 [* 7] 7 of 7

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