Preview
FILED: KINGS COUNTY CLERK 04/12/2022 09:02 PM INDEX NO. 524963/2020
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/12/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
_______________________________________Ç
NAFTOLY WEBER, Index No. 524963/2020
Plaintiff,
AFFIDAVIT IN SUPPORT
PLAINTIFF'S MOTION FOR
- against - SUMMARY JUDGMENT
THE 329 LLC,
Defendant.
__________________________________________Ç
NEW YORK }
COUNTY OF KINGS }ss:
NAFTOLY WEBER, a religious person, being duly affirmed, deposes and says:
1. I am the plaintiff (the "Plaintiff") the named plaintiff in the above entitled
action and as such I am fully familiar with the facts and circumstances of this matter as
set forth herein.
2. I make this affidavit in support of the Plaintiff's motion herein that seeks (i)
an Order granting Plaintiff summary judgment on the complaint herein in itsentirety
pursuant CPLR 3212; and (ii)for such other and further relief as this Court deems just
and proper.
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NATURE OF THE ACTION
3. This is an action commenced Plaintiff on or about December 8, 2017, by
summons and complaint. A copy of the Complaint is annexed hereto as Exhibit A. The
Complaint alleges four (4) causes of action sounding in: (1) breach of contract, (2) unjust
enrichment, (3) conversion and (4) money had and received. Defendant THE 329 LLC
(the "Defendant") generally denied the allegations in the Complaint and asserted
affirmative defenses. See Answer annexed hereto as Exhibit B.
PRELIMINARY STATEMENT
4. As detailed below, the indisputable fact is that Defendant received
$200,000.00 from Plaintiff as a loan in August 20, 2019 and never returned the loan. see
Exhibit C, which isa copy of the $200,000.00 check from Plaintiffto Defendant.
5. Under any of the theories of the causes of action, Defendant's
inexcusable failure to return the $200,000.00 requires this Court to award Plaintiff a
judgment against Defendant in the amount of $200,000.00, plus interest as set forth
below.
FACTUALBACKGROUND
6. In or about August of 2019, Defendant solicited a loan of
$200,000.00 from the Plaintiff to Defendant.
7. On or about August 20, 2019, Defendant entered into an oral agreement
with Plaintiff to borrow $200,000.00 from Plaintiff and to pay interest of 12.5% on
the loaned amount.
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8. Pursuant to agreement, Plaintiff gave Defendant $200,000.00 on
August 20, 2019.
9. The agreement was that the loan was due and payable within four
months of the loan on December 20, 2019.
10. To date Defendant has failed to pay back the $200,000.00 or make any
payments of interest on the loan.
11. Plaintiff has demanded the return of the $200,000.00 with interest from
the Defendant and Defendant has refused to return the $200,000.00.
12. Plaintiff has never received anything in return for the $200,000.00 that it
lent to the Defendant.
BREACH OF CONTRACT
13. Plaintiff and Defendant entered into a contract for Plaintiff to loan
Defendant $200,000.00 as described above.
14. Plaintiff performed his obligations under the contract between Plaintiff
and Defendant by advancing the money.
15. Defendant breached the terms of the contract between Plaintiff and
Defendant by not making any payments towards the loan.
16. Accordingly, Defendant has been damaged $200,000.00 with interest
from August 20, 2019.
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UNJUST ENRICHM ENT-(in the Alternative)
17. In the event that this Court does not find that there was a loan agreement
between the parties for the $200,000.00 at an interest rate of 12.5% annual rate, the
Court should award Plaintiff a judgment based upon the theory unjust enrichment as set
forth below.
18. Due to the aforementioned actions of the Defendant, Defendant received
benefits from the Plaintiff, to which the Defendant was not entitled and which
Defendant has not returned, including, but not limited to, $200,000.00.
19. Defendant was unjustly enriched, to the detriment of the Plaintiff.
20. Accordingly, Defendant has been damaged $200,000.00 with interest
from August 20, 2019 at the statutory rate of 9% interest.
CONVERSION (In the alternative)
21. In the event that this Court does not find that there was a loan
agreement between the parties for the $200,000.00 at an interest rate of 12.5% annual
rate, the Court should award Plaintiff a judgment based upon the theory conversion as
set forth below.
22. As elaborated above Defendant took $200,000.00 from Plaintiff.
23. Defendant has not returned the $200,000.00 after Plaintiffrequested that
Defendant return the $200,000.00 in December 2019.
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24. Defendant and has exercised unauthorized dominion and control over the
$200,000.00 that belongs to Plaintiff.
25. Accordingly, Defendant has been damaged $200,000.00 with interest
from December 20, 2019 at the statutory rate of 9% interest.
MONEY HAD & RECEIVED (In the alternative)
26. In the event that this Court does not find that there was a loan
agreement between the parties for the $200,000.00 at an interest rate of 12.5% annual
rate, the Court should award Plaintiff a judgment based upon the theory of money had
and received as set forth below.
27. As elaborated above Defendant received $200,000.00 from Plaintiff.
28. Defendant benefited from the $200,000.00 by depositing it into
Defendant's bank account and using itfor Defendant's benefit.
29. Under principles of good conscience, the Defendant should not be allowed to
retain the $200,000.00 and should return itto Plaintiff.
30. Accordingly, Defendant has been damaged $200,000.00 with interest
from August 20, 2019 at the statutory rate of 9% interest.
DEFENDANT'S AFFIRMATIVE DEFENSE SHOULD HE DISMISSED
31. Defendant's claim of the existence of an arbitration agreement ismeritless.
32. There was no arbitration agreement between Plaintiff and Defendant.
33. It is indisputable that Judah Klein is the manager and member of
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Defendant The 329 LLC.
34. As is evident from the fact that Juda Klein signed the verification for
Defendant's Answer (See Exhibit B) as Defendant's manager conclusively demonstrates that
Defendant was controlled by Mr. Klein.
35. It is undisputed that Mr. Klein asked Plaintiff to loan Defendant the
$200,000.00. See Exhibit C, which isa copy of the check from Plaintiff to Defendant.
36. Plaintiffnever claimed thatthe money was given to Mr. Klein personally.
37. Plaintiffalways maintained that Defendant received the loan and isobligated to
return the loan back to Plaintiff.
38. Accordingly, Defendant's affirmative defense has no merit.
CONCLUSION
39. As detailed above, the indisputable fact is that Defendant received
$200,000.00 from Plaintiff as a loan in August 20, 2019 and never returned the loan.
40. Under any of the theories of the causes of action, Defendant's
inexcusable failure to return the $200,000.00 requires this Court to award Plaintiff a
judgment against Defendant in the amount of $200,000.00, plus interest as stated above.
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NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/12/2022
WHEREFORE, itis respectfully requested that Plaintiff s motion for judgment be
summary
granted in itsentirety.
NAFTÒLY WEBER
Affirmed before me this
day of April, 2022
RIFKYSCHWARTE
Notary Public - Stats bf Meyf Ybrt
NO. OtSCS389156
/' , d . ,-
Queufled in Kings Cobgty
¿f My Commission Expfres Mar 18. 2023
Not/tw Public
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Preview
FILED: KINGS COUNTY CLERK 04/12/2022 09:02 PM INDEX NO. 524963/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/12/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _______________________________________Ç NAFTOLY WEBER, Index No. 524963/2020 Plaintiff, AFFIDAVIT IN SUPPORT PLAINTIFF'S MOTION FOR - against - SUMMARY JUDGMENT THE 329 LLC, Defendant. __________________________________________Ç NEW YORK } COUNTY OF KINGS }ss: NAFTOLY WEBER, a religious person, being duly affirmed, deposes and says: 1. I am the plaintiff (the "Plaintiff") the named plaintiff in the above entitled action and as such I am fully familiar with the facts and circumstances of this matter as set forth herein. 2. I make this affidavit in support of the Plaintiff's motion herein that seeks (i) an Order granting Plaintiff summary judgment on the complaint herein in itsentirety pursuant CPLR 3212; and (ii)for such other and further relief as this Court deems just and proper. 1 of 7 FILED: KINGS COUNTY CLERK 04/12/2022 09:02 PM INDEX NO. 524963/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/12/2022 NATURE OF THE ACTION 3. This is an action commenced Plaintiff on or about December 8, 2017, by summons and complaint. A copy of the Complaint is annexed hereto as Exhibit A. The Complaint alleges four (4) causes of action sounding in: (1) breach of contract, (2) unjust enrichment, (3) conversion and (4) money had and received. Defendant THE 329 LLC (the "Defendant") generally denied the allegations in the Complaint and asserted affirmative defenses. See Answer annexed hereto as Exhibit B. PRELIMINARY STATEMENT 4. As detailed below, the indisputable fact is that Defendant received $200,000.00 from Plaintiff as a loan in August 20, 2019 and never returned the loan. see Exhibit C, which isa copy of the $200,000.00 check from Plaintiffto Defendant. 5. Under any of the theories of the causes of action, Defendant's inexcusable failure to return the $200,000.00 requires this Court to award Plaintiff a judgment against Defendant in the amount of $200,000.00, plus interest as set forth below. FACTUALBACKGROUND 6. In or about August of 2019, Defendant solicited a loan of $200,000.00 from the Plaintiff to Defendant. 7. On or about August 20, 2019, Defendant entered into an oral agreement with Plaintiff to borrow $200,000.00 from Plaintiff and to pay interest of 12.5% on the loaned amount. 2 2 of 7 FILED: KINGS COUNTY CLERK 04/12/2022 09:02 PM INDEX NO. 524963/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/12/2022 8. Pursuant to agreement, Plaintiff gave Defendant $200,000.00 on August 20, 2019. 9. The agreement was that the loan was due and payable within four months of the loan on December 20, 2019. 10. To date Defendant has failed to pay back the $200,000.00 or make any payments of interest on the loan. 11. Plaintiff has demanded the return of the $200,000.00 with interest from the Defendant and Defendant has refused to return the $200,000.00. 12. Plaintiff has never received anything in return for the $200,000.00 that it lent to the Defendant. BREACH OF CONTRACT 13. Plaintiff and Defendant entered into a contract for Plaintiff to loan Defendant $200,000.00 as described above. 14. Plaintiff performed his obligations under the contract between Plaintiff and Defendant by advancing the money. 15. Defendant breached the terms of the contract between Plaintiff and Defendant by not making any payments towards the loan. 16. Accordingly, Defendant has been damaged $200,000.00 with interest from August 20, 2019. 3 3 of 7 FILED: KINGS COUNTY CLERK 04/12/2022 09:02 PM INDEX NO. 524963/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/12/2022 UNJUST ENRICHM ENT-(in the Alternative) 17. In the event that this Court does not find that there was a loan agreement between the parties for the $200,000.00 at an interest rate of 12.5% annual rate, the Court should award Plaintiff a judgment based upon the theory unjust enrichment as set forth below. 18. Due to the aforementioned actions of the Defendant, Defendant received benefits from the Plaintiff, to which the Defendant was not entitled and which Defendant has not returned, including, but not limited to, $200,000.00. 19. Defendant was unjustly enriched, to the detriment of the Plaintiff. 20. Accordingly, Defendant has been damaged $200,000.00 with interest from August 20, 2019 at the statutory rate of 9% interest. CONVERSION (In the alternative) 21. In the event that this Court does not find that there was a loan agreement between the parties for the $200,000.00 at an interest rate of 12.5% annual rate, the Court should award Plaintiff a judgment based upon the theory conversion as set forth below. 22. As elaborated above Defendant took $200,000.00 from Plaintiff. 23. Defendant has not returned the $200,000.00 after Plaintiffrequested that Defendant return the $200,000.00 in December 2019. 4 4 of 7 FILED: KINGS COUNTY CLERK 04/12/2022 09:02 PM INDEX NO. 524963/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/12/2022 24. Defendant and has exercised unauthorized dominion and control over the $200,000.00 that belongs to Plaintiff. 25. Accordingly, Defendant has been damaged $200,000.00 with interest from December 20, 2019 at the statutory rate of 9% interest. MONEY HAD & RECEIVED (In the alternative) 26. In the event that this Court does not find that there was a loan agreement between the parties for the $200,000.00 at an interest rate of 12.5% annual rate, the Court should award Plaintiff a judgment based upon the theory of money had and received as set forth below. 27. As elaborated above Defendant received $200,000.00 from Plaintiff. 28. Defendant benefited from the $200,000.00 by depositing it into Defendant's bank account and using itfor Defendant's benefit. 29. Under principles of good conscience, the Defendant should not be allowed to retain the $200,000.00 and should return itto Plaintiff. 30. Accordingly, Defendant has been damaged $200,000.00 with interest from August 20, 2019 at the statutory rate of 9% interest. DEFENDANT'S AFFIRMATIVE DEFENSE SHOULD HE DISMISSED 31. Defendant's claim of the existence of an arbitration agreement ismeritless. 32. There was no arbitration agreement between Plaintiff and Defendant. 33. It is indisputable that Judah Klein is the manager and member of 5 5 of 7 FILED: KINGS COUNTY CLERK 04/12/2022 09:02 PM INDEX NO. 524963/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/12/2022 Defendant The 329 LLC. 34. As is evident from the fact that Juda Klein signed the verification for Defendant's Answer (See Exhibit B) as Defendant's manager conclusively demonstrates that Defendant was controlled by Mr. Klein. 35. It is undisputed that Mr. Klein asked Plaintiff to loan Defendant the $200,000.00. See Exhibit C, which isa copy of the check from Plaintiff to Defendant. 36. Plaintiffnever claimed thatthe money was given to Mr. Klein personally. 37. Plaintiffalways maintained that Defendant received the loan and isobligated to return the loan back to Plaintiff. 38. Accordingly, Defendant's affirmative defense has no merit. CONCLUSION 39. As detailed above, the indisputable fact is that Defendant received $200,000.00 from Plaintiff as a loan in August 20, 2019 and never returned the loan. 40. Under any of the theories of the causes of action, Defendant's inexcusable failure to return the $200,000.00 requires this Court to award Plaintiff a judgment against Defendant in the amount of $200,000.00, plus interest as stated above. 6 6 of 7 FILED: KINGS COUNTY CLERK 04/12/2022 09:02 PM INDEX NO. 524963/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/12/2022 WHEREFORE, itis respectfully requested that Plaintiff s motion for judgment be summary granted in itsentirety. NAFTÒLY WEBER Affirmed before me this day of April, 2022 RIFKYSCHWARTE Notary Public - Stats bf Meyf Ybrt NO. OtSCS389156 /' , d . ,- Queufled in Kings Cobgty ¿f My Commission Expfres Mar 18. 2023 Not/tw Public 7 of 7