Yampolsky v Tsaryuk

Annotate this Case

Download PDF

Yampolsky v Tsaryuk 2023 NY Slip Op 32722(U) August 3, 2023 Supreme Court, Kings County Docket Number: Index No. 505323/2021 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. 505323/2021 FILED: KINGS COUNTY CLERK 08/07/2023 01:56 PM NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 08/07/2023 SUPREME COURT OF THE S.TA-TE or· NEW YORK COUNTY OF KINGS : CIVIL TERM; COMMERCIAL 8 .. --- . -. --------. ----· ---· -.· --------·· -----. ------x· ALEXANDER YAMPbLS_}5Y, suing indi vidu~lly and derivatively on behalf o.f SUPREME TRU.CKING GROUP LLC, order and Decision , . . P1aintiff s, - ag_ainst -:- . . Index No. 505323/2021 DMTTRY TSARYUK, MOLDTRANS EXPRESS INC, , TD BANK -----· - PRESENT: August 3, 2023 De t ertdan.ts. , -· --------x ----------~ ·--- ·---HON. LEON Motion Seq. #4 RUCHELSMAN The plaintiff has moved pursuant to CPLR-§2221 seeking to reargue a decision and, ·oxder "denying summary -judgement ori the The defendant ha-s opposed the caus~ of action for ar:i. accounting. motion. Papers were submitted by the parties and afte.r reviewing all the arguments this .court .now makes the followiiig d~termination . As recorded in prior orders·, the plaintiff Alexander Yampolsky i-s a ten percent own.er and th_e defendant Ornitry Tsaryu.k is a ninety percent owner of Supreme Trucking Group LLC; company engaged in the ·truc~ing :bµs-iness ~ a Th_e plaintiff c_orprnen_ced this l,aws:ui t ;:i.lleging t;.11::e. defendant.. has failed to give him th_e distribution s due arid. ·has essehtialiy stolen money from the company and has. d_i ve.:i:t~d the fund$. ot tp.e company to entity, defendant Moldtran:s Express Inc. artcither The plaintiff sought dis·c.overy which. included the busines·$ r.ec9-rds of the company as well. as _an equitable accounting. The plai.nt,iff -asserts the def-endartt failed to provide any :such discovery. [* 1] 1 of 4 The plainti.ff INDEX NO. 505323/2021 FILED: KINGS COUNTY CLERK 08/07/2023 01:56 PM NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 08/07/2023 moved seeking· summary -judgement regarding the cause of 'action .f"or an accquntinq argu_ing there are no questions of fac_t he is entitled to a sunu.nary determinatio n concerrtin:g this cause of The court deil-ied that. in.otion holding. that i:h oro.er action.. prevail upon an action f.or an accoun:tihg there must determinatio n of wrongdoing. to be a Since any questions of wrongdoing have ·not been. con.elusively established no summary jlJ,dgeme_nt was: p9ssible. Upon reargl;itri.ent the plaintif.f argues that in f.act evidence of wro.ngdoing_: had beeri. presented and th$._refore the c_ourt should revisi_t_ the issue 9nd upon consideration of all the eviden:ce conclude that the. plaintiff :is entitied to summary j_·µdgement on_ the: cause of acti.dn seeking an accou,nting. Gonclu-sions bf Law A motion to reargue must be based. upon the fact the court ove.rlqo.ked .or mis.apprehend ed ·.£act -or law or f·or some. othe.r reason mistakenly arrived at in its ec1-rli';>r de:c;.ision (Deutsche B_ank ~ationai ~rust Co .• v. Rbs~ci, 170 AD3d 952~ 96 NYS2d 617 [2d Dept., 2019]-)". In order to assert a cause of action se.eking an accountih9 the movant must establish "the e;x:istence o.f .a co.nf·id.en.tial or· fiduciary relations.hi-p and .a bre;;i.ch of the duty impose_d by that relationship respecting property in which the party seeking the 2 4 [* 2]· - - - - - - - - - - - - - - - - - - - -2-of -----------------------· .~:·,::ti·... INDEX NO. 505323/2021 FILED: KINGS COUNTY CLERK 08/07/2023 01:56 PM NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 08/07/2023 accounting has an interest" (see, Rozenberg v. Perlstein, 200 A,D3d 915, 158 NY$3d 2 33 [2d Dept., 2021]) . Thus, the movant must demonstra te "some wrongdoin g on the part of a defendant with respect to the fiduciary relationsh ip'' (Pacella v. RSA Consultah ts Inc., 164 AD3d 806, 83 NYS3d 630 [2d Dept., 2018]). Therefore , to assert a cause of action for art accounting there must have beeh ''some wrongdoin g" committed . summary j µdgement, However, to obtain the assertion of wrongdoin g must be e.stablishe d wherein all questions of fact have been eliminated . Consequen tly, the court did not err requiring a conclusiv e determina tion of some wropgcioin g since that is the sumni.ary judgement standard. Next, concerning the specific evidence presented in ·the prior motion, the affidavit of the plaintiff does not eliminate all questions of fact. Rather, it is merely the plaintiff 's Specifica lly, the plaintiff version of events that occurred. argued and continues to argue that the defendant removed his ownership interest in Supreme withot1t his consent.. However, the defendant asserts the plaintiff used thousands bf dollars belonging to the company for his own personal uses and therefore expelled him from the (:ompany (see, Affidavit of Drni try T:Saryuk, '.1(2 a [NYSCEF Doc. No. 110]). Whether such expulsion was proper is legal question that requires analysis (see, Garcia v. Garcia, Un AD3d 859, 133 NYS3d 631 [2d Dept., 2020]). 3 [* 3] 3 of 4 Indeed, there are FILED: KINGS COUNTY CLERK 08/07/2023 01:56 PM NYSCEF DOC. NO. 136 INDEX NO. 505323/2021 RECEIVED NYSCEF: 08/07/2023 $ure1y questions whether a member's improper conduct, if true, constitutes a breach of the operating agreement which acts as a :Eorfeiture of any further rights LLC v. (see, Tradesman Program Managers Doyle, 202 NYS3d 456, 163 NYS3d 10 [Pt Dept., 2022]), This is particularly t.tue in this case ·where the plaintiff is accused of stealing funds from the corporation and Therefore, there are numer·ous facts that are in dispute that compel a denial of any summary determination whether the plaintiff is entitled to an accounting. Consequently, the motion seeking reargument is denied. So ordered. ENTER: DATED: August 3, 2023 Brooklyn N.Y. ~ Hon. Leon Ruchelsrnan JSC 4 [* 4] ...................... 4 of 4 ·-··---------------------------

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.