David v. Arbie Processing, LLC

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David v Arbie Processing, LLC 2024 NY Slip Op 31214(U) April 8, 2024 Supreme Court, Kings County Docket Number: Index No. 517803/2023 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.

FILED: KINGS COUNTY CLERK 04/09/2024 02:21 PM INDEX NO. 517803/2023 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/09/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY.OF KINGS.: CIVIL TERM: COMMERCIAL PART 8 -- ------ -- -- --------- ----. ---- ----x SNIR DAVID; Plaintiff; Decision and order

- against - Index No. 517803/20 23

ARBIE .PROCESSING, LLC, RON BOROVINSKY and ELIZABETH BOROVINSK, Defendant s, April 8, 2024 --------- --------- - - - ------- ~-----x PRESENT: HON. LEON RUCHELSMAN' Motion Seq. #3 & #4

The defendant s have moved pursuant to CPLR §2221 seeking to

reargue a decision and order dated February 13, 2024 seeking a

determina tion the UCC statement s filed by the defendant s cancelled

the UCC statement s filed by the plaintiff . The plaintiff has also

moved seeking reagument whether the plaintiff may file a notice of

pendency on propertie s owned by Arbie. The motions have been

opposed respectiv ely. Papers have been submitted by the parties

and arguments held. -After :reviewing all the arguments this court

now makes the fo1Lowing determina tion.

In this consolida ted action the plaintiff ha:s sued seeking to

enforce repayment of a loan made to defendant Arbie Processing LLC

in 2018. The plaintiff filed 12 UCC-1 on various propertie s. The

defendant seeks an order cancelling those UCC-ls filed.. The

plaintiff did not really oppose that motion. Thus, the 1T¹.otion

seeking reargum:en t is granted and upon reargtimen t the motion

seeking to cancel the UCC-ls filed on the variou,s propertie s

connected to this lawsuit is granted.

Turning to the cross-mot ion, while the court held that notices

FILED: KINGS COUNTY CLERK 04/09/2024 02:21 PM INDEX NO. 517803/2023 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/09/2024

As, not.12:(l, the.- p,laintiff ·has expended .r.nuch li tigci.tion on H;sue:s

of atta.chme,nt., restraints On property in various ways and the li,ke.

As ncited, ho further restraints can be placed <on any further

properties ·without court approval. The part.ies rna.y not further

proceed with the progression df this case.

So· ordered.

ENTER:

DATED: April 8, 2024 Broo-k.lyn N. Y. Hon. JSC

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Footnotes

[1] of 4 [* 1] of pendency filed on propertie s owned by defendant Arbie is proper, the plaintiff seeks clarificat ion whether notices of pendency may be filed upon further propertie s. Specifica lly, the plaintiff seeks to file notice.s of pendency upon approxima tely. sixteen propertie s, admittedl y, none of which are owned by the defendant s. It is well settled that a notice of pendency provides construct ive notice of an action where the judgement may affect the title to real property (Sharestat es Investmen ts, LLC v. Hercules,

[178] AD3d 1112, 116 NYS3d 299 [2d Dept., 2019]). The purpose of the gr ant of the privilege was to prevent 'the ac;quisi t ion pendent e lite of an interest in the subject-m atter of the suit, to the prejudice of the plaintiff ..• " {see, Israelson v. Bradley, 308 NY 511, 127 NE2d 313 [1955l). Thus, the notice of pendency represents a policy whereby "a suitor's action shall not be impeded, or defeated by an alienation of the subject property during the course of the lawsuit" (Cayuga Indian Nation of New York v. Fox, 544 F.Supp 542 [N;O.N.Y. 19821). . . Eve·n i f these propertie s are connected to the defendant Arbie Processing LLC, the plaintiff has not presented any evidence that notices of penciency are necessary to restrain so many propertie s. Thus, there is simply no basis to restrain so many propertie s to secure a 1o·an that is far less than the value of all these propertie s. The c::ontinued and repeated attempts to file notices of pendency that far exceed the loan and that may not be owned by the 2 of 4 [* 2] defendant in this case is improper. There-fore ; the motion seeking to restrain any of the propertie s listed in the plaintiff 's motion is denied. The plaintiff has restrained propertie s owned by the defendant and the court . has upheld those notices, No further property may be restrained in this case.. Indeed, the plaintiff must obtain prior court permission before filing any restraints on any property connected to the defendant s in this case. Turning to the motion seeking reargumert t prohibitin g pre- judgement attachmen t and the dismissal o.f the individua l defendant s, a motion to reargue must be based upon the fact the court overlooke d or misappreh ended fact or law or for some other reaSon mistakenl y arrived at in its earlier decision (Deutsche Bank National Trust Co. , v. Russo, 1 70 AD3d 9 52, 9 6 NYS3d 61 7 [2d Dept. , 2019]). First; the plaintiff has offered no evidence at all the defendant s used the corporate entity in improper ways wherEoby the individua ls should not be protected thereby. There is absolutely no evidence presented theplai.n ti.ff has met the burden of piercing the corporate veil. Second, c:::oncernin g pre-judgem ent attachmen t, the plaintiff has not presented any conclusio n reached by the court that was ih error. Rather, the plaintiff simply seeks to argue, once again;. that attachmen t is proper. The court rejected that argument and there is no basis to revisit the conclusio ns reached. 3 3 of 4 [* 3]