Zwebner v. Strulovitch

2022 NY Slip Op 30478(U)

YONA ZEVE ZWEBNER, NEHAMA ZWEBNER, JOSEPH SILBERMAN, RAZIEL AVISHI, NISIM CRAYON, MO SHE OHAYON, ESTHER OHAYON, ELI HASKAL, REUVEN ANKRI, YITZCHAK BLAS, YEHUDA LANDAU, YEHUDA TZADKA, SHEMUEL ELGRABLI, CHANI ELGRABLI, DAVID FODOR, MOSHE GERSHUNI, TZVI YAKOVE, YEHUDA GANTZ, ELI KIRSHANBOUM, JOSEPH CHARVIT, AVRUMI VAKNIN, NATAN FELDMAN, AVRAHAM. MISHKOVSKY, RAPHAEL KESSLER, ISRAEL MEIR. PERETZ, YITZCHAK CHAIM ARIE, BEZALEL SCHWAB, SHMUEL VAKNIN, LEVI ITZCHAK; HELLER, SHIMON VAKNIN, Plaintiffs, v. YECHEZKEL STRULOVITCH A/K/A CHASKIEL MR, STRULOVITCH, CS CONSTRUCTION GROUP LLC, GLAUBERS CHASIDISHA CLOTHING LLC, GLAUBERS CLOTHING LLC, GLAUBERS QUALITY CLOTHING LLC, GLAUBERS TRADITIONAL CLOTHING LLC, 945 PARK PL LLC, 1078 DEKALB LLC, 74 VAN BUREN LLC, 454 CENTRAL AVENUE LLC, 980 ATLANTIC HOLDINGS LLC, PENN CONDOMINIUM LLC, THROOP HOME, LLC, EIGHTEEN PROPERTIES LLC, THE BUSHWICK PARTNERS LLC, BROOKLYN VENTURES LLC, THE HOWARD DAY HOUSE LLC, 196 ALBANY HOLDINGS L.P., CSN PARTNERS LP, KNICKERBOCKER LOFTS LLC, 1301 PUTNAM LLC, 741 LEXINGTON LLC, 296 COOPER LLC, WILLTROUT REALTY LLC, STAGG STUDIOS LLC, FIRST AVENUE REALTY HOLDINGS LP, CSY HOLDINGS LLC, CAS MANAGEMENT COMPANY BAYSHORE, INC., 31 BROOKLYN. LLC, 1035 FLUSHING AVE LLC, VICTORY BLVD ASSOCIATE LLC, SOI GROUP LLC, 945 WILLO.UGHBY HOLDINGS LLC, 119 HOLDINGS LLC, WALLACE HOLDINGS LLC, 1642 EQUITIES LLC, BNH PROPERTIES LLC, HERMAN GREENFELD as trustee of GIVAS OLIM TRUST, MENDEL BRACH, as trustee of GIVAS OLIM TRUST, TOMPKINS 420 REALTY LLC, WILLOUGHBY EQUITIES LLC, 186 LENOX LLC, 400 SOUTH 2ND STREET REALTIES LP, WYKOEF SP LLC, 1428 FULTON ST LLC, PENN & MARCY LLC, 420 TOMPKINS, LLC, 599-601 WILLOUGHBY, LLC, CS YH CONDOS LLC, LENOX 186 HOLDINGS LLC, LENOX 186 REALTY LLC, 400 SOUTH 2ND STREET HOLDINGS L.P, R.P.S. PROPERTIES LLC, FULTON STREET HOLDNGS LLC, 908 BERGEN STREET LLC, 901 BUSHWICK AVENUE LLC, GATES EQUITY HOLDINGS LLC, 853 LEXINGTON LLC, 348 ST. NICHOLAS LLC, 762 WILLOUGHBY LLC, 855 DEKALB AVENUE LLC, THE BRIDGE TOWER LLC, 619 HOLDINGS LLC, GRAND SUITES LLC, CATALPA DEVELOPMENT, LLC, SLOPE OFFICES LLC, 41-49 SPENCER LLC, 482-484 SENECA LLC, 1217 BEDFORD LLC, 1266 PACIFIC LLC, MYRTLINO HOLDINGS, LLC, 259 BERRY LLC, and 261 BERRY LLC, Defendants,

Index No. 530498/2021

Supreme Court, Kings County

January 27, 2022

Unpublished Opinion

PRESENT: HON. LEON RUCHELSMAN, JUDGE

LEON RUCHELSMAN, JUDGE

The defendants CSN Partners LP, 196 Albany Holdings LP, 400 South 2nd Street Realties LP, 400 South 2nd Street Holdings LP First Avenue Realty Holdings LP, 186 Lenox LLC, Lenox 186 Holdings LLC and Lenox 186 Realty LLC have moved seeking to dismiss various allegations of the Amended Complaint and to cancel the: notices of pendency filed 1428 Fulton St LLC and Fulton Street Holdings LLC have also moved seeking to dismiss causes of action of the Amended Complaint and to cancel the notices of pendency filed 31 Brooklyn LLC has also moved seeking to dismiss causes of action of the Amended Complaint and to cancel the notices of pendency filed. Eighteen Properties LLC, Knickerbocker Lofts LLC, 296 Cooper LLC Willtrout Realty LLC, Stagg Studios LLC, Tompkins 420 Realty LLC and 420 Tompkins, LLC have also moved seeking, to dismiss causes of action of the Amended Complaint and to cancel the notices of pendency filed.

The plaintiffs have opposed the motions. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.

According to the Amended Complaint the plaintiffs were approached by the individual defendants Yeohezkel Strulovitch and Yeohiel Oberlander (now deceased) about investing in real estate properties in Kings County in 2012. The plaintiffs intended to invest various sums in investment properties, throughout Brooklyn. The Amended Complaint alleges that defendant. Strulovich did. not invest the investment funds given to him for the intended purposes pf purchasing and renovating properties but rather used the. money for other ventures unrelated to the interests of any Of the, plaintiffs. Specifically, the Amended Complaint alleges that Strulevitch engaged in six fraudulent schemes.

The first scheme involved purchasing property located at 945 Park Place with investment funds given by the plaintiffs, for the purchase of properties located at 1078 Dekalb Avenue, 8 Maple Avenue, 74 Van Buren Street, 454 Central Avenue and. 980 Atlantic Avenue The Defendants 945 Park PL LLC, 1078 Dekalb LLC, 74 Van Buren LLC, 454 Central Avenue LLC, 980 Atlantic Holdings LLC, and CSY Holdings, LLC are alleged to be the owners of the Scheme 1 properties.

The second scheme involved utilizing funds given by the plaintiffs, for investment properties whereby the defendants utilized those funds to purchase and renovate and develop other properties. Those, other properties are located at 217 Perm. Street, 12 Throop Avenue, Unit 1G, 255 18th Street, 1098-1104 Bushwick Ave, 284 Sumpter Street, 16 Howard Avenue, 196 Albany Avenue, 1173 Bergen Street, 783 Knickerbocker Avenue, 741 Lexington Avenue, 296 Cooper Street, 965 Willoughby Avenue, 361 Stagg Street, 31-43 Brooklyn, Avenue, 1035 Flushing Avenue, 945 Willoughby Avenue, 119 MeKibbin Street, 1642 58th Street, all located in Kings County, 2212 Victory Boulevard, Staten Island, New York, 2075 Wallace Avenue, Bronx, New York and 940 1st Avenue, New York, New York. The defendants Penn Condominium LLC, Throop Home, LLC, Eighteen Properties LLC, the Bushwick Partners LLC, Brooklyn Ventures LLC, The Howard Day House LLC, 196 Albany Holdings L.P., CSN Partners LP, Knickerbocker Lofts LLC, 741 Lexington LLC, 296 Cooper LLC, Will trout Realty LLC, Stagg Studios LLC, First Avenue Realty Holdings L.P., CAS Management Company Bayshore, Inc., 31 Brooklyn LLC, 1035 Flushing Ave LLC, Victory Blvd Associate LLC, SOI Group LLC, 945 Willoughby Holdings LLC, 119 Holdings LLC, Wallace Holdings LLC, and 1642 Equities LLC are alleged to be, the owners of the Scheme 2 properties. Further, the complaint alleges, the defendants purchased businesses, namely two medical facilities, and a clothing store known as the scheme 2 businesses.

The third scheme involved utilizing funds given by the plaintiffs for investment properties whereby the defendants utilized those, funds to purchase other, properties located at 219-221 Rutledge Street, 420 Tompkins Avenue, 599 Willoughby Avenue, 186 Lenox Road, 254 Penn Street, 396 South 2nd Street, 49 Wyckoff Avenue, 1426, 1428, and 1432 Fulton Street, all in Kings County The Defendants BNH Properties LLC, Tompkins 420 REALTY LLC, Willoughby Equities LLC, 186 Lenox LLC, 400 South 2ND Street Realties L.P., Wykoff SP LLC and 1428 Fulton St LLC are alleged to be the owners of the Scheme 3 properties after transferring them from Penn & Marcy LLC, 420 Tompkins, LLC 599-601 Willoughby LLC, CS YH Condos LLC, Lenox 186 Holdings LLC, Lenox 186 Realty LLC, 400 South 2nd Street Holdings L.P., R.P.S. Properties LLC, Fulton Street Holdings LLC.

The fourth, scheme alleges the defendants sold investment properties located at 908 Bergen Avenue, 901 Bushwick Avenue, 1285 Bushwick Avenue, 369 Gates Avenue, 853 Lexington Avenue, 762 Willoughby Ave, and 1301 Putnam Ave, all located in Kings County and 348, St. Nicholas Avenue, in New York County.

The- fifth scheme alleges the defendants sold various properties they purchased using the plaintiff's investment funds owned by the Bridge Tower LLC, 619 Holdings LLC, Grand Suites LLC, Catalpa Development, LLC, Slope Offices LLC, 41-49 Spencer LLC, 482-484 Seneca LLC, 1217 Bedford LLC, 1266 Pacific LLC, Myrtlino Holdings, LLC, 259 Berry LLC, and 261 Berry LLC.

The sixth scheme alleges the defendants fraudulently represented to. the investors they were not able to purchase investment property located at 1173 Bergen Street when in fact the defendants: purchased that property for themselves.

The Amended Complaint, alleges, numerous causes of action including the imposition of a constructive trust on the Scheme 1, 2 and 3 properties and businesses of scheme 2, an equitable lien upon such properties and businesses, a constructive trust on the proceeds, of the scheme 4 and -scheme 5 properties, sold, a claim for racketeering, fraud, conversion, unjust enrichment, an accounting, breach, of contract and for fraudulent conveyances. As noted, the moving defendants have filed motions seeking to dismiss many of the causes of action and to cancel notices of pendency filed.

Conclusions of Law

It is well settled that upon a motion, to dismiss the court must determine., accepting, the allegations of the complaint as true, whet hex the. party can succeed upon any reasonable view of" those facts (Strujan v. Kaufman & Kahn LLP, 168 A.D.3d 1114, 93 N.Y.S.3d 334 [2d Dept., 2019]). Further, all the allegations, in the complaint are deemed true and all reasonable Inferences may be drawn, in favor of the plaintiff (Weiss v. Lowenberg, 95 A.D.3d 405, 94 4 N.Y.S.2d 27 [1st Dept., 2012]). Whet her the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a pre-discovery CPLR §3211 motion to dismiss (see, Moskowitz v. Masliansky, 198 A.D.3d 637, 155 N.Y.S.3d 414 [2021]).

In order to impose a constructive trust the following four elements must, he proven. There must be a confidential or fiduciary relationship, a promise, a transfer in reliance of the promise and unjust enrichment (Sharp v Kosmalski, 40 N.Y.2d 119, 386 N.Y.S.2d 72 [1976]). These elements are not applied rigidly but flexibility is employed, especially to promote and satisfy the demands of justice (Sanxhaku v. Margetis, 151 A.D.3d 778, 56 N.Y.S.3d 238 [2d Dept., 2017]). Thus, a...