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FILED: NEW YORK COUNTY CLERK 03/10/2019 09:15 AM INDEX NO. 652352/2018
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/10/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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WIKKED ENTERTAINMENT, INC., and
STELLA STOLPER,
NOTICE OF ENTRY
Plaintiffs,
Motion Sequence No. 1
-vs-
Index No. 652352/2018
ZARINA BURBACKI and YONATAN Justice Assigned:
SHIMRONY, Hon. Andrew S. Borrok, J.S.C.
Defendants.
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SIRS OR MADAMS:
PLEASE TAKE NOTICE that the annexed decision and order is a copy of a
decision and order duly entered in the above-entitled action and filed in the office of the
13th
Clerk of the County of New York on the day of February 2019.
Dated: Fresh Meadows, New York
March 10, 2019
Yours, etc.,
/Jonathan E. Neuman/
JONATHAN E. NEUMAN, ESQ.
Attorney for Defendants
176-25 Union Turnpike, Suite 230
Fresh Meadows, NY 11366
(347) 450-6710
(718) 228-3689 fax
jnesq@jenesqlaw.com
TO: County Clerk
60 Centre Street, Room 141B
New York, New York 10007
Clerk of the General Clerk's Office
60 Centre Street, Room 119
New York, New York 10007
Marlen Kruzhkov, Esq.
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NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/10/2019
Kruzhkov Russo PLLC
Attorneys for Plaintiffs
350 Fifth Avenue, Suite 7230
New York, New York 10118
(212) 363-2000
(917) 591-7175 (fax)
marlen@kruzhkovrusso.com
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FILED::
(FILED NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 03/10/2019
02/13/2019 09:15
01: 52 AM INDEX
INDEX NO.
NO. 652352/2018
652352/2018
PM)
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02/13/2019
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ANDREW BORROK PART IAS MOTION53EFM
Justice
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INDEX NO. 652352/2018
WIKKED ENTERTAINMENT, INC., STELLA STOLPER
MOTION DATE
Plaintiff,
MOTION SEQ. NO. 001
- v -
ZARINA BURBACKI, YONATAN SHIMRONY,
Defendant. DECISION AND ORDER
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Upon the foregoing documents and for the reasons indicated on the record (2/13/19
A. Armstrong, Ct. Reporter) and as otherwise set forth below:
1. The motion to dismiss the first cause of action (conversion) is denied. The
allegations set forth in the complaint are that two conversions took place. One
conversion relates to $125,000. No credible dispositive documentary evidence is
offered to refute this allegation and the complaint otherwise states a cause of
action. The second involves $150,000 which was later allegedly removed from the
account. The facts alleged are that $500,000 was in the escrow account. Ms.
Burbacki returned $350,000 and withheld or distributed $150,000 to another party
without permission. The documentary evidence submitted demonstrates that Ms.
Burbacki reported that there was only $350,000 in the account and that such
amount had, in fact, been transferred. No bank statements, flow of funds or other
evidence has been provided to utterly refute the claim for the conversion of
$150,000. To the extent that an email is produced from Ms. Stolper to Rosemary
Mathawossian where Ms. Stolper says that this is all that it left in the account, it is
insufficient to refute the claim. It may be that Ms. Stolper is indicating that this is
all that is left in the account because Ms. Burbacki has absconded or converted
$150,000.
2. The motion to dismiss the second cause of action (tortious interference) is
granted without prejudice. Tortious interference requires (1) a business
relationship with a 3rd party, (2) the defendant knew of the relationship with
intentional interference, (3) the defendant acted out of malice or used improper
means that amount to a crime or an independent tort and (4) the defendant caused
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CLERK 03/10/2019
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652352/2018
PM)
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injury. Amaranth LLC v JP Morgan Chase & Co., 71 AD3d 40, 47 (1st Dept
2009).
Where tortious interference is based on a defamatory statement, pleading in
accordance with CPLR 3016 is required. To wit, it is necessary to allege the time,
place and manner of the false statement and to whom it was made. Dillon v City of
NY, 261 AD2d 34, 38 (1st Dept 1999). The complaint contains mere general
allegations, and most significantly, does not properly identify the business
relationship or otherwise allege to whom it was made.
3. The motion to dismiss the third cause of action (breach of duty, based on the
conversion) is denied at this stage of the pleading given the alleged attorney/client
relationship.
4. The motion to dismiss the fourth cause of action (breach of duty, based on
business opportunity) is granted without prejudice as there simply are insufficient
facts to make out a breach of duty as it relates to business opportunities.
5. The motion to dismiss the fifth cause of action (unjust enrichment) is
granted. This is duplicative of the first cause of action.
6. The motion to dismiss the sixth cause of action (defamation) is granted without
prejudice. There are insufficient facts plead to make out a claim of defamation,
given the heightened pleading requirements of CPLR 3016 (i.e., among other
deficiencies, no one is specifically identified as having heard or been affected by
the alleged defamatory statement).
7. The motion to dismiss the seventh cause of action (violation of 18 USC 2701) is
granted. It is clear from the documentary evidence that Ms. Stolper granted
unfettered access to her email account and asked Ms. Burbecki to do searches for
certain information for her and asked them to change the password. In addition, the
complaint does not sufficiently allege damages.
8. The motion to dismiss the eighth cause of action (Cal. Penal Code 630) is
granted without prejudice. Among other deficiencies, the complaint simply does
not allege that any conduct took place in California (i.e., the complaint refers to a
call in Connecticut) and no authority is offered for the proposition that a violation
of the California penal law may be brought as a cause of action in a New York
state court action.
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FILED::
(FILED NEW
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CLERK 03/10/2019
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01: 52 AM INDEX
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652352/2018
PM)
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9. The motion to dismiss the common law claim of invasion of privacy is
granted. Nothing in the complaint indicates that California law should govern this
case and in New York this claim is not recognized. Messenger v Gruner+Jahr
Printing & Publ'g, 94 NY2d 436 (2000).
10. The motion to dismiss the tenth cause of action (accounting) is denied as there
is an issue as to the amount of money that was in the client trust account.
11. The motion to dismiss the eleventh cause of action (malpractice) is denied at
this stage of the pleading because, among other things, of the allegations regarding
the unauthorized withdrawals from the client escrow account and the potential
handling of matters beyond her level of expertise without appropriate engagement
of co-counsel and/or consultation with attorneys with specific expertise.
12. Insofar as the defendants moved to have the complaint dismissed with respect
to Wikked, the motion is granted without prejudice as none of the allegations
appear to relate to Wikked.
13. For the avoidance of doubt, as none of the allegations appear to relate to Mr.
abetted"
Shimrony other than a conclusory allegation that he "aided and certain
causes of action which were otherwise dismissed above, the action is dismissed
without prejudice as against Mr. Shimrony.
Accordingly, it is hereby
ORDERED that the motion to dismiss is granted to the extent that the second, fourth, fifth, sixth,
seventh, eighth and ninth causes of action are dismissed; and itis further
ORDERED that accordingly the complaint is dismissed in its entirety as against Yonotan
Shimrony with costs and disbursements to said defendant as taxed by the Clerk of the Court, and
the Clerk is directed to enter judgment accordingly in favor of said defendant; and itis further
ORDERED that the action is severed and continued against the remaining defendant; and it is
further
ORDERED that the remaining defendant is directed to serve an answer to the complaint within 20
days after service of a copy of this order with notice of entry; and itis further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed
with the court bear the amended caption as follows:
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FILED::
IFILED NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 03/10/2019
02 /13/2019 09:15
01: 52 AM INDEX
INDEX NO.
NO. 652352/2018
652352/2018
PM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 30
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RECEIVED NYSCEF:
NYSCEF: 03/10/2019
02/13/2019
Stella Stolper,
Plaintiff,
-against-
Zarina Burbacki,
Defendant.
and itis further,
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry
upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's
Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the
change in the caption herein; and itis further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's
Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse
"E-Filing"
and County Clerk Procedures for Electronically Filed Cases (accessible at the page on
the court's vechsite at the address www.nycourts.eav/snoctris-©].
Preliminary Conference: March 11, 2019 at 11:30 am.
1902131352 OKCC854 OEC9 18B9
2/13/2019
DATE ANDREW BORROK, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFERIREASSIGN FIDUCIARY APPOlMTMFMT REFERENCE
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