State v. Fine

—Order of the Supreme Court, New York County (Andrew R. Tyler, J.), entered on November 19, 1986, which, inter alia, granted plaintiffs motion for a preliminary injunction enjoining defendants, their agents and employees, pending the hearing and determination of the subject action, from engaging in or attempting to engage in any business relating to the purchase and sale of securities to the public within or from the State of New York, is affirmed, without costs or disbursements. As the Court of Appeals held in People v Lexington Sixty-First Assocs. (38 NY2d 588, 595), in reference to the Martin Act: "Article 23-A of the General Business Law is remedial in nature and should be liberally construed in order that its beneficent purpose may, so far as possible, be attained * * * More to the point, in reviewing condominium and co-operative apartment ventures, the most rigid standards of fair dealing and good faith toward tenants are to be imposed on promoters” (see also, Matter of Badem Bldgs. v Abrams, 70 NY2d 45; All Seasons Resorts v Abrams, 68 NY2d 81). In Matter of Badem Bldgs. v Abrams (supra, at 53-54), the Court of Appeals recently reiterated this principle when it declared that the Martin Act: "prohibits the use of fraud, deception or concealment to induce or promote the sale or exchange of securities in this State. The statute was enacted to protect the public from fraudulent exploitation in the offer and sale of securities, and its provisions are to be liberally construed to give full effect to its remedial purpose (All Seasons Resorts v Abrams, 68 NY2d 81, 86-87; Matter of First Energy Leasing Corp. v Attorney-General of State of N.Y., 68 NY2d 59, 64; People v Lexington Sixty-First Assocs., 38 NY2d 588, 595; People v Federated Radio Corp., 244 NY 33, 37, 38). Thus, in People v Federated Radio Corp. (supra), we gave the words 'fraud’ and 'fraudulent practice’ a wide meaning and we stated that 'fraud’ in a broad sense includes 'all deceitful practices contrary to the plain rules of common honesty’ (id., at 38, 39). In that case, we held that the statute was broad enough to encompass 'equitable fraud’ for which 'scienter’ is not needed [305] and that scienter, therefore, need not be alleged and proved in order to sustain Martin Act liability (see, id., at 40-41).” In carrying out the remedial intent of the Martin Act to protect the public interest and prevent substantial and possibly irreparable harm, the Attorney-General possesses broad enforcement powers, including the authority to seek both temporary and permanent injunctive relief. For purposes of injunctive relief pursuant to the Martin Act, we agree with the statement of Justice Richard Wallach in People v Glenn Realty Corp. (106 Misc 2d 46, 47), that since the statute is remedial in nature, the Attorney-General "need only show prima facie that the respondents’ actions fell within the purview of the act and that, as such, they violated the act”. It should be noted, however, that even applying the higher standard for injunctive relief under CPLR article 63, the Attorney-General has, in the instant matter, made a sufficient factual showing to warrant the drastic remedy of a preliminary injunction. In that regard, an examination of the record herein, as well as the offering plans of the cooperative conversions in question, reveals that plaintiff has adequately demonstrated its allegation that with respect to both properties, 565 Broadway and 684 Broadway, important details have been selectively omitted from the prospectuses. Consequently, there is no indication in either case that the mortgaging arrangement is such that it is in the sponsor’s interest for a default to occur. For example, the first amendment to the offering plan relating to 565 Broadway neglects to mention that the first mortgage held by OD Investors, having an outstanding balance of $240,000, which is to be assumed by the cooperative corporation, provides for the payment of interest only. According to the plan, this mortgage requires monthly payments of $3,600, including interest at 7% per annum. The monthly installments must then be applied by the holder to payments of principal and interest on the prior mortgages (the details of which are nowhere mentioned). The Attorney-General states in his affidavit that under this mortgage "$40,000 of the $240,000 had not yet been advanced as of the signing of the mortgage agreement dated October 31, 1978 but was to be advanced in accordance with the agreement. The agreement provided for interest to be paid on the principal sum of $240,000 at 14Vz% per annum. The agreement did not provide for the payment of principal.” However, the impression given by the prospectus is that the $3,600 monthly payments, including interest at 7% per annum, would be used to pay both [306] interest and principal. The purchasers were not advised that the corporation’s monthly payments would be applied to interest only and that if they wished to pay principal, the rate on the latter would, according to the Attorney-General, be at 14i/2%. The second mortgage on the 565 Broadway property, the first mortgage being subject and subordinate thereto, is described in the prospectus as having a principal balance of $119,248 held by 39-41 Worth Street Co., payable semiannually up to June 30, 1979 at a rate of 7% per annum, interest only; and thereafter up to July 1, 1982 at a rate of 8% interest plus 1% amortization, followed by a rate of 8% interest and 2% amortization to be paid to July 1, 1989, when the entire principal sum shall be due and payable. At that time, the aggregate unpaid principal would be $89,928. By the time of the closing, the property was encumbered by a single 12-year wraparound mortgage in the amount of $420,000 at 7% annual interest with payments by the cooperative to be $3,600 per month, including interest. This wraparound mortgage would presumably be subordinate to both the OD Investors mortgage and the Worth Street mortgage and would require that the monthly installments be applied to payments of principal and interest on the prior mortgages. Again, nowhere was it disclosed that there was no provision for amortization of the OD Investors mortgage or that there would be a shortfall at the expiration of the mortgage. As to the premises at 684 Broadway, although there were certain significant details left undisclosed, such as the identity of the holder of the senior wraparound mortgage and the terms of payment and interest rate pertaining to two of the mortgages underlying the senior wraparound mortgage, the major problem here is that, once again, there is no indication that the financing scheme was structured in such a way as to make a default on the part of the sponsor virtually inevitable. The junior wraparound mortgage requires that the aggregate principal balance of the senior wraparound mortgage and any other prior mortgages never exceed that of the junior wraparound mortgage. The Attorney-General claims that in order to comply with this provision, the sponsor would have had to refinance the balance due on the senior wraparound mortgage in September of 1987 and amortize that balance in such a way that it would be no more than $155,695 in September of 1994, the due date of the junior wraparound mortgage. To accomplish this, he would have to obtain unrealistically favorable terms (that is, at an interest rate of approximately 7%), or [307] else he would not be able to make the mandated payments of principal and interest without exceeding the monthly payments of $6,250 received from the cooperative corporation. This fact was also not disclosed to the purchasers. Accordingly, the Supreme Court properly granted plaintiffs motion for a preliminary injunction. Concur—Sullivan, Milonas and Kassal, JJ.