Motion-Secondary: xxxxxx xxxxxx aka xxxxxxxxxx xxxxxx, individually and derivatively on behalf of ROCKVILLE CORP. v. xxxxxxx xxxxx individually and as the executor of the Estate of xxxx xxxxx, and as co-trustee of the disclaimer Trust under Article "Fourth" of the Last Will and Testament of xxxx xxxxx, Makan Delrahim as former co-trustee of the disclaimer Trust under Article "Fourth" of the Last Will and Testament of xxxx xxxxx, Baharak Amirian as co-trustee of the disclaimer Trust under the Last Will and Testament of xxxx xxxxx, Rockville Corp. as Nominal Defendant

On June 02, 2022 a Motion-Secondary was filed involving a dispute between Xxxxxx Xxxxxx Aka Xxxxxxxxxx Xxxxxx, Individually And Derivatively On Behalf Of Rockville Corp., and Baharak Amirian As Co-Trustee Of The Disclaimer Trust Under The Last Will And Testament Of Xxxx Xxxxx, Xxxxxxx Xxxxx Individually And As The Executor Of The Estate Of Xxxx Xxxxx, And As Co-Trustee Of The Disclaimer Trust Under Article "Fourth" Of The Last Will And Testament Of Xxxx Xxxxx, Makan Delrahim As Former Co-Trustee Of The Disclaimer Trust Under Article "Fourth" Of The Last Will And Testament Of Xxxx Xxxxx, Rockville Corp. As Nominal Defendant, for Commercial Division - Business Entity in the District Court of Nassau County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU

xxxxxx xxxxxx a/k/a xxxxxxxxxx xxxxxx,
individually and derivatively on behalf of Index No. 607197/2022
ROCKVILLE CORP.,

Plaintiff, Motion Seq. Nos. 001 & 002

-against-
Hon. Sharon M.J. Gianelli
xxxxxxx xxxxx, individually and as the executor
of the Estate of xxxx xxxxx, and as co-trustee of the
disclaimer Trust under Article “Fourth” of the Last ORAL ARGUMENT
Will and Testament of xxxx xxxxx; MAKAN REQUESTED
DELRAHIM, as former co-trustee of the disclaimer
Trust under Article “Fourth” of the Last Will and
Testament of xxxx xxxxx; and BAHARAK
AMIRIAN as co-trustee of the disclaimer Trust under
the Last Will and Testament of xxxx xxxxx,

Defendants,

-and-

ROCKVILLE CORP.,

Nominal Defendant.

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO
MOTION FOR PRELIMINARY INJUNCTION AND IN SUPPORT
OF CROSS-MOTION TO DISMISS THE COMPLAINT

KASOWITZ BENSON TORRES LLP
David E. Ross
Michael S. Beck
1633 Broadway
New York, New York 10019
Tel: (212) 506-1700

Counsel for Defendants & “Nominal” Defendant

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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .................................................................................................... 1

FACTS ............................................................................................................................................ 5

A. xxxx xxxxx Creates A Life In America For His Brother ....................................... 5

B. The Liquor Store Business And The “Sweetheart” Deal For Plaintiff ................... 6

C. Mortgages, K-1’s And Tax Filings of Rockville Show Plaintiff Has No
Ownership Interest Of Any Kind ............................................................................ 6

D. xxxx xxxxx’s Death And The Ensuing Relationship Between The Parties ........... 8

E. Wrongful Joinder Of Former Trustee Delrahim And Current Trustee
Amirian ................................................................................................................... 9

ARGUMENT .................................................................................................................................. 9

I. DOCUMENTARY PROOF CONFIRMS PLAINTIFF HAS NO RIGHT TO A
PRELIMINARY INJUNCTION ...................................................................................... 11

A. Plaintiff Has Not Shown A Likelihood Of Success On The Merits Of His
Claim ..................................................................................................................... 12

B. Plaintiff Has Established No Irreparable Harm .................................................... 15

C. The Equities Strongly Tip in xxxxxxx xxxxx’s Favor ............................................ 16

II. DEFENDANTS’ CROSS-MOTION TO DISMISS THE COMPLAINT
SHOULD BE GRANTED ................................................................................................ 18

A. Conclusive Documentary Proof Requires Dismissal Of The Complaint.............. 18

B. Plaintiff’s Claims Are Barred By The Statute Of Frauds And The Statute
Of Limitations ....................................................................................................... 18

C. Plaintiff’s Complaint Fails To State Cognizable Causes Of Action ..................... 19

1. Plaintiff’s Cause Of Action For Breach Of Fiduciary Duty Fails ............ 19

2. Plaintiff’s Cause Of Action For A Constructive Trust Fails..................... 20

3. Plaintiff’s Cause Of Action For A Permanent Injunction Fails ................ 20

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D. The Complaint Against The Former And Present Trustee Must Also Be
Dismissed On Numerous Additional Grounds ..................................................... 21

CONCLUSION ............................................................................................................................. 22

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TABLE OF AUTHORITIES

Page(s)

Cases

ABKCO Music, Inc. v. McMahon as Tr. of Andrea Marless Cooke Fam. Tr.,
175 A.D.3d 1201 (1st Dep’t 2019) ..........................................................................................22

Amsterdam Hosp. Grp., LLC v. Marshall-Alan Assocs., Inc.,
120 A.D.3d 431 (1st Dep’t 2014) ......................................................................................10, 18

Brookhaven Baymen’s Ass’n, Inc. v. Town of Southampton,
85 A.D.3d 1074 (2d Dep’t 2011) .............................................................................................15

Caruso v. Bumgarner,
120 A.D.3d 1174 (2d Dep’t 2014) ..................................................................................... 20-21

Crivaro v. Crivaro,
295 A.D.2d 304 (2d Dep’t 2002) .............................................................................................14

Dana Distr., Inc. v. Crown Imports, LLC,
48 A.D.3d 613 (2d Dep’t 2008) ...............................................................................................15

Faberge Int’l, Inc. v. DiPino,
109 A.D.2d 235 (1st Dep’t 1985) ............................................................................................10

Fischer v. Deitsch,
168 A.D.2d 599 (2d Dep’t 1990) .............................................................................................16

Godfrey v. Spano,
13 N.Y.3d 358 (2009) ..............................................................................................................10

Golden v. Steam Heat, Inc.,
216 A.D.2d 440 (2d Dep’t 1995) .............................................................................................15

Matter of Goldfarb v. Ramapo,
167 A.D.3d 1009 (2d Dep’t 2018) .............................................................................................9

Hogue v. Vill. of Dering Harbor,
199 A.D.3d 900 (2d Dep’t 2021) .......................................................................................15, 21

Kuznitz v. Funk,
187 A.D.3d 1006 (2d Dep’t 2020) ...........................................................................................13

Mar v. Liquid Mgmt. Partners, LLC,
62 A.D.3d 762 (2d Dep’t 2009) ...............................................................................................16

iii

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Moloney v. Weingarten,
118 A.D.2d 836 (2d Dep’t 1986) .......................................................................................14, 20

O’Hara v. Corp. Audit Co.,
161 A.D.2d 309 (1st Dep’t 1990) ............................................................................................10

Omakaze Sushi Rest., Inc. v. Ngan Kam Lee,
57 A.D.3d 497 (2d Dep’t 2008) ...............................................................................................10

OraSure Techs., Inc. v. Prestige Brands Holdings, Inc.,
42 A.D.3d 348 (1st Dep’t 2007) ..............................................................................................16

Oshlani v. Tomfol Owners Corp.,
2017 WL 1836425 (Sup. Ct. N.Y. Cty. May 5, 2017) ................................................. 14, 19-20

Pesochinsky v. 77 Bleecker St. Corp.,
250 A.D.2d 494 (1st Dep’t 1998) ......................................................................................14, 19

Preferred Equities Corp. v. Ziegelman,
155 A.D.2d 424 (2d Dep’t 1989) .............................................................................................17

Related Props., Inc. v. Town Bd. of Town/Vill. of Harrison,
22 A.D.3d 587 (2d Dep’t 2005) ...............................................................................................12

Robinson v. Robinson,
303 A.D.2d 234 (1st Dep’t 2003) ............................................................................................10

Rosa Hair Stylists v. Jaber Food Corp.,
218 A.D.2d 793 (2d Dep’t 1995) .............................................................................................10

Rowland v. Dushin,
82 A.D.3d 738 (2d Dept, 2011) ...............................................................................................15

Sanxhaku v. Margetis,
151 A.D.3d 778 (2d Dep’t 2017) .............................................................................................20

Saran v. Chelsea GCA Realty P’ship, L.P.,
148 A.D.3d 1197 (2d Dep’t 2017) .............................................................................................9

Somers Assocs., Inc. v. Corvino,
156 A.D.2d 218 (1st Dep’t 1989) ...................................................................................... 16-17

Tutak v. Tutak,
123 A.D.2d 758 (2d Dep’t 1986) .......................................................................................14, 20

Vill. of Kiryas Joel v. Cty. of Orange,
144 A.D.3d 895 (2d Dep’t 2016) .............................................................................................19

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Winter Bros. Recycling Corp. v. Jet Sanitation Serv. Corp.,
23 Misc. 3d 1115[A] (Sup. Ct. Nassau Cty. Mar. 13, 2009) ...................................................16

Statutes

N.Y. Gen. Oblig. Law § 5-701.................................................................................................13, 18

N.Y. Gen. Oblig. Law § 5-703.................................................................................................13, 18

Other Authorities

CPLR 213.......................................................................................................................................14

CPLR 214.......................................................................................................................................14

CPLR 301.......................................................................................................................................22

CPLR 302.......................................................................................................................................22

CPLR 3211............................................................................................................................. passim

CPLR 4519.....................................................................................................................................13

CPLR 6312.....................................................................................................................................17

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Defendants xxxxxxx xxxxx, Makan Delrahim, Baharak Amirian, and Rockville Corp.

(together, “Defendants”) submit this memorandum of law in opposition to plaintiff’s motion for a

preliminary injunction (“Motion” or “Mot.”), and in support of their cross-motion to dismiss the

Complaint filed by xxxxxx xxxxxx (“Plaintiff”) pursuant to CPLR 3211 (a)(1), (5), (7) and (8).1

PRELIMINARY STATEMENT

Plaintiff’s Complaint, and his preliminary injunction Motion premised thereon, is fatally

flawed and subject to outright dismissal in its entirety. Plaintiff asserts – with no proof whatsoever

– that he owns 80% of Rockville Corporation (“Rockville”), and therefore, has the right to block

defendant xxxxxxx xxxxx’s sale of Rockville’s sole asset – property on Sunrise Highway in

Rockville Centre. That is false. Conclusive documentary evidence demonstrates that for the last

25 years, from Rockville’s formation through today, Ms. xxxxx’s late husband, xxxx, owned 100%

of Rockville, and upon his death in 2008, that 100% interest passed through xxxx’s will to xxxxxxx.

xxxxxxx has maintained that 100% ownership for the past 14 years.

xxxxxxx’s 100% ownership of Rockville is conclusively established by contemporaneous

corporate documents, estate filings, K-1s showing that xxxx was 100% owner before his death in

2008, and then K-1s showing xxxxxxx has been 100% owner of Rockville since 2008. Indeed, for

25 years, xxxx and then xxxxxxx, have filed tax returns for Rockville reflecting their 100%

ownership, and have personally paid income taxes on Rockville’s earnings.

Plaintiff’s claim that he is 80% owner of Rockville is therefore conclusively refuted by 25

years of corporate filings, tax filings, and other documentary proof. Never during those 25 years

has plaintiff complained that was entitled to receive a K-1, not from his own accountant, who is

1
The Complaint (“Complaint” or “Compl.”), dated June 2, 2022, is Exhibit A to the Affirmation of David E. Ross,
dated June 13, 2022 (“Ross Aff.”).

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also Rockville’s accountant, nor from Rockville or its sole owners – xxxx, and then xxxxxxx.

Never did xxxxxx say he should be the one paying taxes for Rockville. Of course, that never

happened because Plaintiff owns no part of Rockville, and never has.

Real estate ownership and stock ownership are not effected by osmosis or imagination.

Plaintiff can produce no documentary evidence or other competent evidence of his ownership of

Rockville because there is none. There are no writings of any kind establishing Plaintiff’s

purported oral agreement with xxxx 25 years ago, nor are there documents conveying any interest

in Rockville’s shares or real estate to Plaintiff.

Plaintiff’s claim that he had an oral understanding 25 years ago with his now long-deceased

brother, xxxx, thus fails under corporate law, under real estate law, under the weight of conclusive

documentation, and under the statute of frauds, the statute of limitations, and the so-called “dead

man’s statute.”

Plaintiff’s preliminary injunction Motion is likewise baseless, and should be denied.

First, Plaintiff has no likelihood of success on the merits of his claims, all of which depend

on his completely undocumented claim to an 80% ownership stake in Rockville. Plaintiff submits

nothing but his ipse dixit that he owns any part of Rockville or the Property. He submits the initial

incorporation document of Rockville, but it says nothing whatsoever about stock ownership, and

Plaintiff submits several 25-year-old personal checks, which in no way demonstrate – much less

conclusively prove – that he owns any part of Rockville or the Property.

By contrast, as established in the accompanying affidavit of xxxxxxx xxxxx,2 every part of

Rockville’s corporate documentation, including mortgages, K-1’s and tax filings, for over 25 years

shows that xxxx, and then xxxxxxx xxxxx, own 100% of Rockville. This conclusive documentary

2
Exhibits to the Affidavit of xxxxxxx xxxxx, dated June 13, 2022 (“xxxxx Aff.”) are referred to as “Ex. __.”

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evidence eviscerates Plaintiff’s claims. Plaintiff has no likelihood of success on his claim for

breach of fiduciary duty as he is not a fellow shareholder in Rockville, nor can Plaintiff establish

any of the elements of a constructive trust including the existence of a fiduciary relationship

regarding Rockville’s stock ownership. Plaintiff’s claim for a permanent injunction likewise fails

because he has no substantive claim to support it. Plaintiff thus has no likelihood of success –

much less the required strong likelihood – on any of his three claims.

Second, Plaintiff cannot show irreparable harm. Plaintiff’s claim is that through the sale

of the Property, he would “forever lose Rockville Corp.’s sole asset.” (Mot. at 13.) But, as shown

throughout this opposition and xxxxxxx xxxxx’s supporting affidavit, Plaintiff owns no part of

Rockville. Rockville’s 100% owner – xxxxxxx xxxxx – is absolutely within her rights to sell her

own property. Thus, Plaintiff’s alleged “irreparable harm” to him is no harm at all. In fact, it is

xxxxxxx who would be irreparably harmed should an injunction be granted, as it will be akin to a

taking of her lawful property, and will cause her to lose her prospective buyer for the property.

Plaintiff cannot use this lawsuit, or an injunction to which he has no right, to cloud title to this $2.2

million property. Moreover, Plaintiff’s arguments about irreparable harm are belied by his

contemporaneous statements to xxxxxxx and her sons, when he stated, in response to the plan to

sell the property: “go ahead and sell it, the land is not worth that much. I can get another property

across the street for much cheaper and don’t need that location.” (xxxxx Aff. ¶ 51.) Thus,

Plaintiff’s own statements confirm he would not be irreparably harmed by xxxxxxx’s selling her

property – Plaintiff can simply go “across the street for much cheaper.” In addition, because

Plaintiff has no ownership in Rockville or title to its Property, to the extent he has any claim at all

– and he does not – it is a claim for money damages, which is precisely what he seeks in his claim

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for breach of fiduciary duty. Plaintiff thus has an adequate remedy at law, further demonstrating

that he cannot establish irreparable harm absent the injunction.

Third, the equities are completely in xxxxxxx xxxxx’s favor. She has a buyer ready, willing

and able to pay $2.2 million in cash for Rockville’s property. This buyer has submitted a bona

fide Letter of Intent and is fully aware of this dispute, and remains ready to close on the property

as soon as possible. If this action blocks that sale, there is no guarantee that there will be another

buyer offering such an attractive price in an all-cash deal. xxxxxxx xxxxx should not be precluded

from selling her property by Plaintiff’s undocumented and groundless claims. Moreover, as noted

above, Plaintiff told xxxxxxx and her sons to “go ahead and sell [the Property] . . . I can get another

property across the street.” (xxxxx Aff. ¶ 51.) Thus, the equities here tip decidedly in xxxxxxx

xxxxx’s favor.

Defendants’ cross-motion to dismiss the Complaint under CPLR 3211 (a)(1), (5), (7) and

(8) should also be granted on the basis of the conclusive documentary evidence, and alternatively

based on the preclusive bars of the statute of frauds and the statute of limitations. In addition, the

claims against purported trustees Delrahim and Amirian must be dismissed because they are not

subject to personal jurisdiction in New York, they have not been served with process, and the

testamentary trust of which Mr. Delrahim is acknowledged to be a “former trustee,” and of which

Ms. Amirian is a current trustee, does not hold any interest at all in Rockville, and thus the trust

(and its former and current trustees) have no place in this suit.

For these reasons, as detailed in the accompanying affidavits and below, the preliminary

injunction Motion should be denied in its entirety, and Defendants’ cross-motion to dismiss the

Complaint in its entirety should be granted.

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FACTS

A. xxxx xxxxx Creates A Life In America For His Brother

xxxx xxxxx arrived in the United States in 1975, and worked tirelessly to build a life for

himself and his family. (xxxxx Aff. ¶ 7.) Through his hard work, skill, and entrepreneurial attitude,

he created or invested in numerous businesses, including liquor stores, dry cleaners, laundromats

and real estate developments in Long Island and Queens. (xxxxx Aff. ¶¶ 8, 11.) xxxx loved his

brother xxxxxx very much, and in anticipation of xxxxxx emigrating to the United States, xxxx

sought to do everything possible to help his brother get a sound footing in this country, helping

him find a home, establish credit, and providing xxxxxx with a job, and then a business. (xxxxx

Aff. ¶¶ 9-11.)

On August 8, 1996, xxxx incorporated Rockville. (xxxxx Aff. ¶¶ 12-15, Exs. 1-3.) xxxxxx

had no role in setting up, owning, funding, financing, or managing Rockville – xxxx, alone,

handled all of that during his life, with the assistance of xxxx’s lawyer and accounting firm.

(xxxxx Aff. ¶ 12.)

On January 17, 1997, Rockville, under xxxx’s sole ownership and direction, purchased

172 Sunrise Highway in Rockville Centre (the “Property”). (xxxxx Aff. ¶¶ 16-18, Exs. 4 & 5.)

xxxx obtained financing for the purchase, which was guaranteed personally by xxxx and xxxxxxx

xxxxx. (Id.)

Thus, as of early 1997, as demonstrated by the contemporaneous documents, xxxx was

the 100% owner of Rockville, and Rockville’s sole asset was the Property. (xxxxx Aff. ¶ 19.)

Plaintiff owned no part of Rockville, and had no role whatsoever in obtaining the financing for or

guaranteeing the mortgage on, the Property. (Id.)

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B. The Liquor Store Business And The “Sweetheart” Deal For Plaintiff

Once Plaintiff arrived in the United States, xxxx wanted to help him establish himself in

this country, by setting up a business Plaintiff could use to support himself and his family. (xxxxx

Aff. ¶ 20.) xxxx assisted xxxxxx in setting up Bargain Liquors, with its incorporation, obtaining

a liquor license, and financing the operation, so that xxxxxx could own and operate it. (Id. ¶ 21.)

The brothers agreed that although xxxxxx would be the owner of Bargain Liquors, and had no

ownership of Rockville, because Rockville was giving xxxxxx free use of the Property, Bargain

Liquors would pay real estate and other property-related taxes on the Property, and would pay

xxxx on an annual basis 20% of the net profits of Bargain Liquors. (Id.) Contrary to Plaintiff’s

false allegations throughout his Complaint and accompanying affidavit, Bargain Liquors has never

been part of Rockville. They are separate corporations with separate assets, from inception to the

present.

As a result of xxxx’s (and then xxxxxxx’s) generosity to Plaintiff, Plaintiff was able to

make an excellent living, and has had a thriving liquor store business for which he effectively paid

no rent for the past 25 years. (Id. ¶ 22.)

C. Mortgages, K-1’s And Tax Filings of Rockville Show Plaintiff Has No
Ownership Interest Of Any Kind

On December 8, 2000, Rockville, under xxxx’s sole ownership and direction, purchased

172 Sunrise Highway in Rockville Centre, New York – the adjoining lot to the previously

purchased 170 Sunrise Highway. (xxxxx Aff. ¶¶ 24, 25, Ex. 7.) Thereafter, on March 1, 2006,

Rockville, once again under the sole direction of xxxx, obtained a mortgage for 170-72 Sunrise

Highway from Cross County Federal Savings Bank for $900,000 – the proceeds of which went

mainly to Plaintiff to help him purchase a new home for his family and help cover his living

expenses. (xxxxx Aff. ¶¶ 26-28, Ex. 8.) As this mortgage was nearly entirely for Plaintiff’s benefit,

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he agreed to remit to xxxx and the mortgage borrower, Rockville, payments from the operations

of Bargain Liquors sufficient to cover the mortgage payments. (Id. ¶ 29.) In accordance with the

advice from xxxx’s accountant, these payments were reported by Rockville as commercial rent.

(Id.) As a result, xxxx during his life, and then xxxxxxx, received K-1s from Rockville recording

the receipt of this rental income, and they alone, have paid income taxes on Rockville’s annual net

profit resulting therefrom. (xxxxx Aff. ¶ 29, Exs. 12-17.)

Both xxxx – before his death – and xxxxxxx – after inheriting Rockville from xxxx –

routinely received business communications for Rockville, addressed to their home address,

including those related to the $900,000 mortgage taken out in Rockville’s name in 2006. (xxxxx

Aff. ¶¶ 37-40, Exs. 10 & 11.)

As Rockville is a Subchapter-S corporate tax filer, it has produced annual Schedule K-1’s

showing the ownership structure of the corporation for tax filing purposes throughout the entirety

of its existence. (xxxxx Aff. ¶ 41.) At all times before xxxx’s death, he was always listed in those

documents as the 100% owner of Rockville, and accordingly, was solely responsible for its tax

obligations, which he timely paid. (xxxxx Aff. ¶¶ 42-44, Exs. 11-13.) Moreover, Rockville’s tax

returns consistently showed that it had no goods sold – indicating it is not a part of the liquor store

business – and instead, its only source of income is from real estate, as the Property is its sole asset.

(Id.)

After xxxx’s death, and xxxxxxx’s inheritance in 2008 of Rockville from xxxx, xxxxxxx

has been the 100% owner of Rockville, and her tax filings confirm her sole ownership. (xxxxx

Aff. ¶¶ 45-47, Exs. 15-17.) All of the K-1s for Rockville since xxxx’s death show xxxxxxx as the

100% owner of the corporation, and accordingly, she alone is responsible for its tax obligations,

which she has timely paid. (Id.)

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Plaintiff has never paid any of the income taxes due on Rockville’s profits because he has

never had any ownership of any part of that corporation. (xxxxx Aff. ¶ 41.) Thus, at all times since

its inception, Rockville has owned one asset – the Property – and has only ever had a single 100%

shareholder: xxxx, then xxxxxxx, which is conclusively evidenced by mortgages, tax returns, K-

1 forms, and related corporate documents. (Id. ¶ 48.)

D. xxxx xxxxx’s Death And The Ensuing Relationship Between The Parties

On March 10, 2008, xxxx passed away as a result of metastatic cancer. (xxxxx Aff. ¶

30.) At the time of his passing, xxxx owned 100% of Rockville. (Id. ¶ 31.) Pursuant to his

will, xxxx passed that 100% interest to his wife xxxxxxx xxxxx. (Id. ¶¶ 32-34, Exs. 8-9.)

Though xxxxxx had made the agreed payments of 20% of Bargain Liquors’ net profits to

xxxx before his death, and though Bargain Liquors continued to exploit the rent free use of

Rockville’s property, xxxxxx stopped making any payments to xxxxxxx by 2013. (xxxxx Aff. ¶

23.)

Despite xxxxxx’s wrongdoing, xxxxxxx and her family members have tried to amicably

arrange for xxxxxx to buy xxxxxxx out of her ownership of Rockville and her interest in Bargain

Liquors’ net profits. (xxxxx Aff. ¶ 49.) Unfortunately, Plaintiff has refused to negotiate in good

faith. When advised that xxxxxxx would be selling Rockville’s property and had an offer for $2.2

million, xxxxxx told xxxxxxx: “go ahead and sell it, the land is not worth that much. I can get

another property across the street for much cheaper and don’t need that location.” (Id. ¶ 51.)

xxxxxx thus acknowledged xxxxxxx xxxxx’s complete ownership of Rockville and the Property.

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E. Wrongful Joinder Of Former Trustee Delrahim And Current Trustee
Amirian

To harass xxxxxxx and her family, Plaintiff has sued Makan Delrahim, as former co-trustee

of the disclaimer Trust (the “Trust”) under the Last Will and Testament of xxxx xxxxx (the

“Will”), and has sued Baharak Amirian, as current trustee of the Trust under the Will.

These trustees are not proper parties because the Trust does not own any part of Rockville

nor its sole asset, the Property. (Affidavit of Baharak Amirian, dated June 13, 2022 (“Amirian

Aff.”) ¶ 3.) Absent a short period of time when Rockville was inadvertently placed into the Trust,

the Trust has never included any interest in Rockville, and Rockville was removed from the Trust

more than 10 years ago when the error was noted. (xxxxx Aff. ¶¶ 3, 32-34, 37.) Mr. Delrahim is

also not a current trustee of the Trust, as he resigned from that position in 2018. (Delrahim Aff. ¶

3.)

Mr. Delrahim and Ms. Amirian must also be dismissed from this case because neither is

subject to personal jurisdiction in this case: neither lives or works in New York, nor are they doing

or transacting business in New York in connection with this dispute. (Affidavit of Makan

Delrahim, dated June 13, 2022 (“Delrahim Aff.”) ¶ 2; Amirian Aff. ¶ 2.) In addition, neither Mr.

Delrahim nor Ms. Amirian have been served with process in this action. (Id.)

ARGUMENT

“[T]o obtain a preliminary injunction, the moving party must establish (1) a likelihood of

success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the

equities balance in his or her favor.” Matter of Goldfarb v. Ramapo, 167 A.D.3d 1009, 1010 (2d

Dep’t 2018). “[P]reliminary injunctive relief is a drastic remedy which will not be granted unless

a clear right thereto is established under the law and the undisputed facts upon the moving papers,

and the burden of showing an undisputed right rests upon the movant.” Saran v. Chelsea GCA

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Realty P’ship, L.P., 148 A.D.3d 1197, 1199 (2d Dep’t 2017); Rosa Hair Stylists v. Jaber Food

Corp., 218 A.D.2d 793, 794 (2d Dep’t 1995) (preliminary injunctions “should not be granted,

absent extraordinary circumstances”). The movant must establish these three essential elements

“with evidentiary detail,” not “speculation and conjecture.” Faberge Int’l, Inc. v. DiPino, 109

A.D.2d 235 (1st Dep’t 1985). Additionally, where the facts are in “sharp dispute,” the moving

party cannot establish a “clear right to preliminary injunctive relief.” Omakaze Sushi Rest., Inc. v.

Ngan Kam Lee, 57 A.D.3d 497, 497 (2d Dep’t 2008); see also O’Hara v. Corp. Audit Co., 161

A.D.2d 309, 310 (1st Dep’t 1990) (“A preliminary injunction should not be granted unless the

right thereto is plain from the undisputed facts and there is a clear showing of necessity and

justification.”).

Pursuant to CPLR 3211(a)(1), dismissal of a complaint is warranted “if the documentary

evidence submitted utterly refutes plaintiff’s factual allegations and conclusively establishes a

defense to the asserted claims as a matter of law.” Amsterdam Hosp. Grp., LLC v. Marshall-Alan

Assocs., Inc., 120 A.D.3d 431, 433 (1st Dep’t 2014) (citations omitted). “On a CPLR 3211 motion

to dismiss, the court is not required to accept factual allegations that are plainly contradicted by

the documentary evidence or legal conclusions that are unsupportable based upon the undisputed

facts.” Robinson v. Robinson, 303 A.D.2d 234, 235 (1st Dep’t 2003) (citations omitted). Pursuant

to CPLR 3211(a)(7), “[a] party may move for judgment dismissing one or more causes of action

asserted against him on the ground that . . . the pleading fails to state a cause of action . . . .”

Despite the general deference accorded to the allegations in a pleading on a motion to dismiss,

“conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—

are insufficient . . . .” Godfrey v. Spano, 13 N.Y.3d 358, 373 (2009) (citation omitted).

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Applying these standards, Plaintiff’s motion for a preliminary injunction should be denied,

and the Complaint should be dismissed on the basis of conclusive documentary proof, and

alternatively, the statute of frauds and the statute of limitations, which also warrant dismissal of

all claims pursuant to CPLR 3211(a)(5). The claims against defendants Delrahim and Amirian

must also be dismissed for lack of personal jurisdiction, lack of service of process and failure to

state any conceivable claim against them.

I. DOCUMENTARY PROOF CONFIRMS PLAINTIFF HAS NO RIGHT TO A
PRELIMINARY INJUNCTION

Plaintiff’s motion for a preliminary injunction rests on the plainly false allegation that

Plaintiff is an 80% majority shareholder of Rockville. This contention is conclusively refuted by

all contemporaneous documentary evidence. In fact, despite Plaintiff’s having unlimited time to

assemble proof for this suit, Plaintiff could not cobble together any evidence supporting his claims

of an 80% ownership in Rockville. Instead, he offers only Rockville’s original incorporation

documents, which do not state who owns Rockville, and checks from 1997 which prove nothing

regarding ownership of Rockville.

By contrast, Defendants’ proof, submitted herewith, consisting of contemporaneous

corporate documents, loan documents, and tax records, conclusively demonstrates that over the

entire 25-year period since xxxx xxxxx formed Rockville, and then bought the Property in

Rockville’s name, that xxxx, and then xxxxxxx, alone, has been the sole 100% owner of Rockville.

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A. Plaintiff Has Not Shown A Likelihood Of Success
On The Merits Of His Claim

“To sustain its burden of demonstrating a likelihood of success on the merits, the movant

must demonstrate a clear right to relief which is plain from the undisputed facts.” Related Props.,

Inc. v. Town Bd. of Town/Vill. of Harrison, 22 A.D.3d 587, 590 (2d Dep’t 2005).3

Here, far from Plaintiff having “undisputed facts” in his favor, all the documentary

evidence conclusively disproves Plaintiff’s claim to ownership of 80% of Rockville. Indeed,

Defendants’ xxxxxxx xxxxx affidavit and its 17 contemporaneous exhibits conclusively show that

xxxx xxxxx held, and xxxxxxx xxxxx holds, 100% of Rockville for the entirety of the corporation’s

existence.

It is clear through the documentary evidence that xxxx alone incorporated Rockville.

(xxxxx Aff. ¶¶ 11-16, Exs. 1-3.) It is clear through the documentary evidence that xxxx purchased

the Property through Rockville and that xxxx and xxxxxxx personally guaranteed the financing for

the property. (xxxxx Aff. ¶¶ 17-20, 25-26, Exs. 4-6.) It is clear through the documentary evidence

that xxxx, through Rockville, took out the $900,000 mortgage on the Property to help fund

Plaintiff’s life, and for which xxxx personally guaranteed. (xxxxx Aff. ¶¶ 27-30, Ex. 7.) It is clear

through the documentary evidence that xxxx owned 100% of Rockville while he was alive, and

that he listed as 100% owner on all K-1s and on Rockville’s filed Subchapter-S tax returns, and

that xxxx (and then xxxxxxx) paid personal income taxes on Rockville’s profits. (xxxxx Aff. ¶¶

32, 42-45, Exs. 12-14.) In addition, contemporaneous mortgage documents likewise recognize

that xxxx was the sole shareholder of Rockville. (xxxxx Aff., Ex. 6.) It is also clear through the

documentary evidence that, since xxxx’s death, xxxxxxx has owned 100% of Rockville, and that

3
All emphasis is added unless otherwise stated.

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she appears as 100% owner on K-1s, files Rockville’s Subchapter-S tax return, and pays personal

income taxes thereon. (xxxxx Aff. ¶¶ 33, 46-48, Exs. 15-17.)

By contrast to this unbroken string of conclusive documentary proof, Plaintiff has no

contemporaneous proof showing that he has any interest in Rockville. Plaintiff’s entire suit is

premised upon his self-serving, and false, statement that “xxxx and I agreed that ownership of

Rockville would be allocated 80% to me and 20% to xxxx.” (Ross Aff. Ex. B (“xxxxxx Aff.”), ¶

9.) Not only does such self-serving statement fail to rebut Defendants’ conclusive documentary

proof, but xxxxxx’s claim of a 25-year old oral agreement is conclusively barred by, and of no

evidentiary value under, New York’s “dead man’s statute.” See CPLR 4519. “The policy of the

statute excludes the evidence of an interested witness concerning [a]ny transaction between

himself and a deceased person.” Kuznitz v. Funk, 187 A.D.3d 1006, 1007 (2d Dep’t 2020). Thus,

Plaintiff’s claim of an oral agreement reached with xxxx is incompetent evidence and proves

nothing.

Plaintiff’s claim also fails completely under the statute of frauds. First, under General

Obligations Law § 5-703(1), an “interest in real property . . . cannot be created, granted, assigned,

surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing,

subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by

his lawful agent, thereunto authorized by writing.” Here, Plaintiff has no writing of any kind

purportedly conveying any interest whatsoever in the Property. Second, and alternatively, Plaintiff

claims xxxx promised 25 years ago that he would someday convey to Plaintiff an 80% interest in

Rockville. Because that is a promise that could not be performed in one-year, the agreement was

required to be in writing and subscribed by xxxx. No such agreement was ever written or signed.

Thus, Plaintiff’s claim also fails under General Obligations Law § 5-701(a)(1).

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Plaintiff’s claims are also time-barred. Plaintiff claims xxxx agreed to convey the 80%

interest in Rockville to him. When xxxx died in 2008, xxxx could no longer perform that alleged

promise. xxxxxx never made any claim for that interest against xxxx’s estate, and has waited 14

years to bring this claim. It is time-barred under any conceivable New York statute of limitations,

wheth

Case Info

Judge

Sharon Gianelli Track Judge’s New Case

Case No.

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Document Filed Date

June 13, 2022

Case Filing Date

June 02, 2022

County

Parties

Baharak Amirian as co-trustee of the disclaimer Trust under the Last Will and Testament of xxxx xxxxx Defendant
BECK, MICHAEL STUART Attorney for the Defendant
Enck-Smith, Briana Attorney for the Plaintiff
xxxxxxx xxxxx individually and as the executor of the Estate of xxxx xxxxx, and as co-trustee of the disclaimer Trust under Article "Fourth" of the Last Will and Testament of xxxx xxxxx Defendant
Makan Delrahim as former co-trustee of the disclaimer Trust under Article "Fourth" of the Last Will and Testament of xxxx xxxxx Defendant
xxxxxx xxxxxx aka xxxxxxxxxx xxxxxx, individually and derivatively on behalf of ROCKVILLE CORP. Plaintiff
PECORINI, MICHAEL CHRISTOPHER Attorney for the Defendant
POLANCO, KASSANDRA Attorney for the Plaintiff
ROCKVILLE CORP. as Nominal Defendant Defendant
ROSS, DAVID E Attorney for the Defendant
SHAPIRO, DANIEL ETHAN Attorney for the Plaintiff
SY, ELIZABETH S. Attorney for the Plaintiff
xxxxxx SKOLNIK Attorney
STEPHEN D'ELIA Attorney
STEPHEN DANETZ Attorney
BRIAN MCKENNA Attorney
MICHAEL HELFER Attorney
CHRISTOPHER THOMPSON Attorney

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