Preview
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NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022
CAL.D .
SUPREME COURT OF THE STATE OF NEW YORK NC
COUNTY OF QUEENS
____________________________________________________________
Helen Skarla, Index No. 90/14
Plaintiff, NOTICE OF MOTION
-against-
Assigned to:
Justice Weiss
NPSFT LLC, NPSFT1 LLC, Eldridge
. Properties, Inc., Visions Federal Credit
Union d/b/a Paragon Federal Union,
Kostas Golfinopoulos, Esq. and
KostasGolfinopoulos, Esq., PLLC, pp
Defendants.
______________________________-------------------------____---_Ç
Motion by: Borchert & LaSpina, P.C.,
Counsel of record for Defendants Kostas
Golfinopoulos, Esq. and
KostasGolfinopoulos, Esq., PLLC.
Date time and .
Place of Hearing: April 1, 2014, at 2:15 P.M., Centralized Motion Part,
Courtroom 25 at the Supreme Court, Queens
County, 88-11Sutphin Boulevard, Jamaica, New
York 11435.
00 9 $ Oral Argument3aaqa
Requested: Yes [X ] No [ ]
"n Bl?9 Ï194 Affirmation, Affidavit and Exhibits
lasdN 2
0 02/at/20 90atsta m×ed (A) Granting padial summary judgment to
movants pursuant to CPLRTZ12 dismissing
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attorneys'
plaintiff's demand for fees and
plaintiff's eleventh and eighth causes of
action; and
(B) Granting to movants such other, further and
different relief as this court deems just and
proper.
Pursuant to CPLR §2214 (b), answering and/or opposing affidavits, if any,
are to be served upon the undersigned at least seven (7) days before the
return date of this motion.
Dated: Whitestone, New York
March 10, 2014
Borchert & LaSpina, P.C.
By:
Helmut Borchert, Esq.
Attorneys for Defendants
Kostas Golfinopoulos, Esq. and
KostasGolfinopoulos, Esq., PLLC
19-02 Whitestone Expressway, Suite 302
Whitestone, New York 11357
(718) 767-3333
TO: Pardalis & Nohavicka, LLP
Attorneys for Plaintiff
35-10 Broadway, Suite 201
Astoria, NY 11106
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Butler, Fitzgerald, Fiveson & McCarthy, P.C.
Attorneys for Defendants NPSFT LLC and NPSFT1 LLC
45th 9th
9 East Street, Floor
New York, NY 10017
Stephen David Fink, Esq.
Attorney for defendant Eldridge Properties, Inc.
118-35 Queens Boulevard, Suite 1220
Forest Hills, NY 11375
Dorf & Nelson LLP
Attorneys for Defendant Visions Federal Credit Union
555 Theodore Fremd Avenue, Suite A-300
Rye, NY 10580
Attn: Laura-Michelle Horgan, Esq.
Golf/NotMot/SJ-1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
Helen Index No.
Skarla,
90/14
Plaintiff,
AFFIRMATION
-against-
Assigned to:
NPSFT LLC, NPSFT1 LLC, Eldridge Justice Weiss
Properties, Inc., Visions Federal Credit
Union d/b/a Paragon Federal Union,
Kostas Golfinopoulos, Esq. and
KostasGolfinopoulos, Esq., PLLC,
Defendants.
_______---_____________--____----------________________________Ç
Helmut Borchert, Esq., an attorney duly admitted to practice law in
the Courts of the State of New York, affirms that the following statements
are true and accurate and subject to the penalties of perjury:
1. I am a partner in the firm of Borchert & LaSpina, P.C., the
attorneys of record for defendants, Kostas Golfinopoulos, Esq. and Kostas
Golfinopoulos, Esq., PLLC and, as such, am fully familiar with the facts and
circumstances surrounding this case.
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2. I submit this affirmation in support of the within motion by
defendants Kostas Golfinopoulos, Esq. and Kostas Golfinopoulos, Esq.,
PLLC (collectively "Golfinopoulos") for partial summary judgment pursuant
attorneys'
to CPLR 3212 to dismiss plaintiff's demand for fees and to
dismiss plaintiff's eleventh (damages without a cause of action) and eighth
(unjust enrichment) causes of action. The affidavit of Kostas Golfinopoulos
is also submitted herewith. This motion is additionally supported by
documentary evidence within my possession as counsel. Leandre v.
Sharperson, 96 A.D.2d 883, 466 N.Y.S.2d 38 (2d Dept. 1983) (summary
judgment may be supported by documentary evidence within counsel's
possession).
3. A copy of plaintiff's summons and complaint is annexed hereto as
Exhibit "A". A copy of the voluminous exhibits to the complaint is
Golfinopoulos'
separately annexed hereto as Exhibit "B". A copy of verified
answer to the complaint is annexed hereto as Exhibit "C". This action
150th
concerns the premises known as 3-29 Street, Whitestone, New York
31st
("Whitestone Premises") and the premises known as 22-33 Street,
Astoria, New York ("Astoria Premises").
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4. Plaintiffs complaint purpods to set forth causes of action for: (1)
breach of fiduciary duty; (2) aiding and abetting breach of fiduciary duty; (3)
fraud in the inducement; (4) constructive fraud; (5) fraudulent concealment;
(6) to set aside the foreclosure sale of the Whitestone Premises and the
Astoria Premises; (7) voidance of the referee's deed and subsequent
deeds to the Whitestone Premises and Astoria Premises; (8) unjust
enrichment; (9) constructive trust; (10) injunctive relief; (11) expenses,
attorneys'
costs and fees; and (12) to pierce the corporate veil.
attorneys'
5. In the prayer for relief plaintiff seeks fees on all causes
of action (in addition to on the eleventh cause of action) and $3,500,000 in
damages for the first, second, third, fourth, fifth and eighth causes of action.
ATTORNEYS'
THE DEMAND FOR FEES MUST BE DISMISSED
attorneys'
6. The demand for fees for all causes of action must be
dismissed.
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7. In Hooper Associates, Ltd. v. AGS Computers, Inc., 74 N.Y.2d
487, 491, 549 N.Y.S.2d 365 (1989), the Court of Appeals reiterated the
well-established rule that:
[A]ttorney's fees are incidents of litigation and
a prevailing party may not collect them from
the loser unless an award is authorized by
agreement between the parties, statute or
court rule.
See also, NRT New York, LLC v. Kontos, 101 A.D.3d 584, 955 N.Y.S.2d
(1st
518, Dept. 2012) (to same effect); Siamos v. 36-02 35th Ave. Dev.,
L_LC, 54 A.D.3d 842, 864 N.Y.S.2d 117, 118 (2d Dept. 2008) (to same
effect); Adesso Cafe Bar & Grill, Inc. v. Burton, 74 A.D.3d 1253, 904
N.Y.S.2d 490 (2d Dept. 2010) (to same effect); U.S. Underwriters Ins. Co.
v. City Club Hotel, LLC, 3 N.Y.3d 592, 597, 789 N.Y.S.2d 470 (2004) ("It is
attorneys'
well settled in New York that a prevailing party may not recover
fees from the losing party except where authorized by statute, agreement
or court rule").
8. There is no agreement, statute or court rule that would allow
attorneys'
plaintiff to recover fees against Golfinopoulos. See annexed
affidavit.
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" "
attorneys'
9. Accordingly, plaintiff's demand for fees must be
dismissed. ]dL
THE ELEVENTH CAUSE OF ACTION MUST BE DISMISSED
10. The eleventh cause of action must also be dismissed.
11. As noted above, that portion of the eleventh cause of action
attorneys'
which is for recovery of fees must be dismissed. 1dL
12. In addition, the remainder of the eleventh cause of action fails to
state a cause of action as a matter of law because there is only a request
for damages without a substantive cause of action to support that request.
For instance, the Court of Appeals has ruled that there can be no separate
cause of action for punitive damages in a case because there must be an
underlying substantive claim within and supporting the cause of action.
13. A careful reading of precedent from the Court of Appeals
requires the conclusion that any cause of action must have an underlying
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substantive claim and not just a request for damages. See, e.a, Rocanova
v. Equitable Life Assur. Soc. of U.S., 83 N.Y.2d 603, 612 N.Y.S.2d 339
(1994) (no separate cause of action for punitive damages); Hubbell v.
Trans World Life Ins. Co., 50 N.Y.2d 899, 430 N.Y.S.2d 589 (1980) (no
punitive damages absent claim for compensatory damages).
14. At best, the eleventh cause of action is merely duplicative of the
causes of action that precede it and, thus, there is no purpose for its
existence.
THE EIGHTH CAUSE OF ACTION MUST BE DISMISSED
15. The eighth cause of action for unjust enrichment must also be
dismissed.
16. The eighth cause of action claims that the purported unjust
enrichment occurred "at and/or subsequent to Closing". See complaint, at
paragraph "124".
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"closing"
17. If the referred to is Skarla's purchase of the Whitestone
Premises, then the claim for unjust enrichment is time-barred since Skarla
admits that purchase took place in 2004 which is more than six years prior
to the commencement of this action. See Loenqard v. Santa Fe Indust., 70
N.Y.2d 262 (1987) (statute of limitations on unjust enrichment claim is six
years); Natimir Restaurant Supply v. London 62 Co., 140 A.D.2d 261, 262,
(1st
528 N.Y.S.2d 564 Dept. 1988) (to same effect); Baratta v. Kozlowski,
94 A.D.2d 454, 464, 464 N.Y.S.2d 803 (2d Dept. 1983) (to same effect);
Equitable Life Assurance Soc. v. Branch, 32 A.D.2d 959, 960, 302
N.Y.S.2d 958 (2d Dept. 1969) (to same effect);CPLR 213(1).
18. At the time Skarla purchased the Whitestone Premises, Skarla
"closing"
already owned the Astoria Premises. Thus, any for the purchase
of the Astoria Premises would be even more time-barred.
"closing"
19. If the referred to is the referee's sale of the Whitestone
Premises and/or the Astoria Premises, the claim for unjust enrichment must
still be dismissed.
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20. A claim for unjust enrichment requires that (1) the defendant
benefited, (2) at plaintiff's expense, and (3) that equity and good
conscience require restitution. Lake Minnewaska Mountain House Inc. v.
Rekis, 259 A.D.2d 797, 686 N.Y.S.2d 186 (3d Dept. 186); 22A N.Y. Jur.2d
Contracts section 518; Kaye v. Grossman, 2003 F3d 611 (2d Cir. 2000); in
Re Vivendi Universal, S.A., 2004 WL 876050 (SDNY 2004); see also, Minna
Inv. Holdings, Ltd. v. Lefkowitz, 51 F. Supp. 2d 486, 489 (S.D.N.Y. 1999) (A
claim for unjust enrichment requires a plaintiff to allege that the defendant
has already been enriched).
21. Golfinopoulos never benefitted at the plaintiff's expense as is
required for a claim for unjust enrichment. See annexed affidavit. More is
needed from plaintiff than wishful conjecture or a sham position. Gerard v.
Inalese, 11 A.D.2d 381, 382, 206 N.Y.S.2d 879 (2d Dept. 1960) (court "may
refuse to try an issue when itis fictitious and sham").
22. Accordingly, the eighth cause of action should be dismissed.
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CONCLUSION
attorneys'
23. Based on the foregoing, the plaintiff's demand for and
the plaintiff's eleventh and eighth causes of action should be dismissed.
24. No previous application for the relief requested herein has been
made to this or any other court.
WHEREFORE, defendants Kostas Golfinopoulos, Esq. and Kostas
Golfinopoulos, Esq., PLLC request and order dismissing the plaintiff's
demand for attorneys and the plaintiff's eleventh and eighth causes of
action together with such other, further and different relief as this court
deemsjustand proper.
Dated: Whitestone, New York
February 26, 2014
Helmut Borchert, Esq.
. Golf/Affirm.SJ-1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
___________-----______________________________________________Ç
Helen Index No. 90/14
Skarla,
Plaintiff,
AFFIDAVIT
-against-
NPSFT LLC, NPSFT1 LLC, Eldridge
Properties, Inc., Visions Federal Credit
Union d/b/a Paragon Federal Union,
Kostas Golfinopoulos, Esq. and
KostasGolfinopoulos, Esq., PLLC,
Defendants.
___________-________________________-__________________________Ç
STATE OF NEW YORK )
) ss.:
COUNTYOF QUEENS )
Kostas Golfinopoulos, being duly sworn, deposes and says as
follows:
1. I am individually one of the defendants in this action and I am
also the principal of defendant Kostas Golfinopoulos, Esq., PLLC ("my
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firm") and I have personal knowledge of the facts and circumstances
recited in this affidavit.
2. A copy of my answer to the complaint in this action is annexed
"C"
hereto as Exhibit and is incorporated and repeated herein by reference.
3. Neither I nor my firm has or ever has had any legal or beneficial
150th
interest in the premises known as 3-59 Street, Whitestone, New York
("Whitestone Premises"). Neither I nor my firm ever received any benefit
due to the foreclosure sale or any subsequent sale of the Whitestone
Premises.
4. Neither I nor my firm has or ever has had any legal or beneficial
31st
interest in the premises known as 22-33 Street, Astoria, New York
("Astoria Premises"). Neither I nor my firm ever received any benefit due to
the foreclosure sale or any subsequent sale of the Astoria Premises.
2
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5. I do not and never have had any legal or beneficial interest in
co-defendant NPSFT LLC. My firm does not and never has had any legal
or beneficial interest in NPSFT LLC.
6. I do not and never have had any legal or beneficial interest in
co-defendant NPSFT1 LLC. My firm does not and never has had any legal
or beneficial interest in NPSFT1 LLC.
7. I do not and never have had any legal or beneficial interest in
co-defendant Eldridge Properties Inc. My firm does not and never has had
any legal or beneficial interest in Eldridge Properties Inc.
8. I do not and never have had any legal or beneficial interest in
co-defendant Visions Federal Credit Union. My firm does not and never
has had any legal or beneficial interest in Visions Federal Credit Union.
9. I am not a party to any agreement that would permit Helen
attorneys'
Skarla to recover fees from me for any reason. There is no
3
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" "
attorneys'
agreement that would permit Helen Skarla to recover fees from
me for any reason.
10. Helen Skarla purchased the Whitestone Premises on October
5, 2004. At that time, Helen Skarla already owned the Astoria Premises.
Kostas/Golfinopoulos
Sworn to before me this
day of /¾r th , 2014
Notary Public
ota y
Golf/Affidavit.Golf-2 0
Qualifiedin Westchester County
Commissian Expires 20 __
ivday 30,
4
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
________________----------------------------------------------Ç
Index No. 90/14
Helen Skarla,
AFFIDAVIT OF SERVICE
-against-
NPSFT LLC, NPSFT1 LLC, Eldridge
Properties, Inc., Visions Federal Credit
Union d/b/a Paragon Federal Union,
Kostas Golfinopoulos, Esq. and
KostasGolfinopoulos, Esq., PLLC,
Defendants.
________________________________-------------________--________Ç
STATE OF NEW YORK )
) ss.:
COUNTY OF QUEENS )
Debbie J. Temkin, being duly sworn, deposes and says:
That deponent is not a party to the action, is over 18 years of age and
resides at Queens, New York.
That on the 10th day of March, 2014 deponent served the within notice of
motion, affirmation, affidavit and exhibits upon:
Pardalis & Nohavicka, LLP
Attorneys for Plaintiff
35-10 Broadway, Suite 201
Astoria, NY 11106
&MDAM
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Butler, Fitzgerald, Fiveson & McCarthy, P.C.
Attorneys for Defendants NPSFT LLC and NPSFT1 LLC
45th 9th
9 East Street, FlOOr
New York, NY 10017 .
Stephen David Fink, Esq.
Attomey for defendant Eldridge Properties, Inc.
118-35 Queens Boulevard, Suite 1220
Forest Hills, NY 11375
Dorf & Nelson LLP
Attorneys for Defendant Visions Federal Credit Union
555 Theodore Fremd Avenue
Rye, NY 10580
Attn: Laura-Michelle Horgan, Esq.
the addresses designated for that purpose by depositing true copies of
same enclosed in a postpaid properly addressed wrapper, by Regular Mail,
in an official depository under the exclusive care and custody of the United
States Postal Service within New York State.
No other parties are entitled to service of the foregoing papers.
De "bie . emkin
Sworn to before me this
10th day of March, 2014
Notary Public
HELMUT BORCHERT
STATE OF NEW YORK
NOTARY PUBUC,
NO. 41-4776441
QUALIFIED IN NASSAU COUNTY
cOMMISSION EXPIRES FEB. 28, 20
.
2
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A
liix·hibit
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" "
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
__---.________.__._________-..__.......____.------------......... _____Ç
HELEN SKARLA Index No.:
Date of Purchase:
Plaintiff
SUMMONS
- against - Venue: Plaintiff designated
Queens County as the place
NPSFT LLC, NPSFT1 LLC, ELDRIDGE PROPERTIES, of trial.
INC, VISIONS FEDERAL CREDIT UNION d/b/a
PARAGON FEDERAL UNION, KOSTAS The basis of venue is defendant
Golfinopoulos'
GOLFINOPOULOS, Esq., and Kostas place of
KOSTASGOLFINOPOULOS, ESQ., PLLC, residence:
220-03 38 Street