arrow left
arrow right
  • Helen Skarla v. Kostas Golfinopoulos Esq., Kostas Golfinopoulos Esq. PLLCTorts - Other (BREACH OF FUDICIARY) document preview
  • Helen Skarla v. Kostas Golfinopoulos Esq., Kostas Golfinopoulos Esq. PLLCTorts - Other (BREACH OF FUDICIARY) document preview
  • Helen Skarla v. Kostas Golfinopoulos Esq., Kostas Golfinopoulos Esq. PLLCTorts - Other (BREACH OF FUDICIARY) document preview
  • Helen Skarla v. Kostas Golfinopoulos Esq., Kostas Golfinopoulos Esq. PLLCTorts - Other (BREACH OF FUDICIARY) document preview
  • Helen Skarla v. Kostas Golfinopoulos Esq., Kostas Golfinopoulos Esq. PLLCTorts - Other (BREACH OF FUDICIARY) document preview
  • Helen Skarla v. Kostas Golfinopoulos Esq., Kostas Golfinopoulos Esq. PLLCTorts - Other (BREACH OF FUDICIARY) document preview
  • Helen Skarla v. Kostas Golfinopoulos Esq., Kostas Golfinopoulos Esq. PLLCTorts - Other (BREACH OF FUDICIARY) document preview
  • Helen Skarla v. Kostas Golfinopoulos Esq., Kostas Golfinopoulos Esq. PLLCTorts - Other (BREACH OF FUDICIARY) document preview
						
                                

Preview

FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 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 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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 2 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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 3 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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. FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 " 9 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"). 2 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 " " NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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. 3 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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. 4 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 " " 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 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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". 6 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 "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. 7 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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. FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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 9 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 " " 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 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 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 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 A liix·hibit FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/09/2022 " " 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