No Value: Abraham Kleinman v. Chaim Porges

On January 04, 2022 a No Value was filed involving a dispute between Abraham Kleinman, and Chaim Porges, for Other Matters - Contract - Other in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 10/04/2022
10/07/2022 03:08
11:22 PM
AM INDEX NO. 500593/2022
NYSCEF DOC. NO. 75
76 RECEIVED NYSCEF: 10/04/2022
10/07/2022

· - Cour
P Silpreme
0.f .the
of the áte of: New Kings·
. ..ork,, Gounty

S.UPREME CQURT OF THE.STATS OF NEW YOnK
COUNTY OF KINGS
.______.....__....___..·____.....____.-a---..___._.._Ç
ABRÂHAM EEINMAN3. Index'.No.::500593/2012

fla'intiff, on·
¡9¡

-against-

CHAIM BORdBS,
ORDER.TO SHOW CAUSE
. WIT.H T.R..0.
Defendant.

Updu readif1g änd filing the Attorney Affirination df JEREMY M. DOBERMAN, ESQ.;

signed on.October 3., 2022, and the exhibits.anifexe8 th reto;·and all.pleadings· and proééedings

here.tofore had herein, let thu Plaintiff, ABRANAM KLPJN1VIAN (hereinatter "Plaintiff'I show

cause before the Hon. Carolyn E. ade, J.S.., at.the S.uprente Court of the State ·ofNew ·York,

Count of K s, at.I.A.S.p;írt tliefeof,located at the Kings County Courthouse, 360 Adâms

Stteet Broo New on· 9th of Novem ber at 9:30 the foren0ön
ÿñ, Yor7, the.. daý ,.2022,

or as soon thereafter as.counsel can be hehrd, why án Order should not be made:

1. acating this Courtis Order, ent red on June 24 .2022, to the'.extentitdirected the

p.artiesto appear before a.judici 1 hestringofficer to hear inna report whether the

judgglent.by confessioli entered iiithik action ·was·fi·audu.1entlyqbtained;

2, Remóving .theinstant gction to the Suprenie Court, Kiñgs .County, Commercial

.Uivision .and consolidäting it with the rélated.action ·entitled dhaim Porges v.

Abraham.Kleinman, filed under index number 5103.85/2022; or, in the.alternativ.e,.

3. Staying the.instänt actiòn during the pendency of the relatéd action, Chaim Porges

v.·Abráham Kleinrñani fÏled under-index·ndiuber 5f10385/2022; and .

4. Forsuch.other and further-rel[ef as this court may deeni jost.and proper.

***** 347-401-9372****
virtually via Microsoft Teams or by telephone

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S.ufficient cause beihg alleged ánd.teas6ns appearing thërefor, it.is
hereby

.ORDERED·that penging the .6f this application, th instaDt

action.is heUeby stayed,in.its entiret^;

. . . . servic.edf a copy o tBis·Order; and thepapers.upon which itis gratited,

be made b.y NYSCE tDail upon coynsel for Défendant, S.tuar.t Blander; Esq, to .

6.deemed o d pufficient service. O

chbra L2
o 2z

E N T E R:

HON.. AROLYN E. W E, J.S.C.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------X
ABRAHAM KLEINMAN, Index No.: 500593/2022
Plaintiff,
Civil Action
-against-

CHAIM PORGES, AFFIRMATION OF
EMERGENCY
Defendant.
-------------------------------------------------------------------X

JEREMY M. DOBERMAN, an attorney duly admitted to practice law before the Courts

of the State of New York, hereby affirms, under the penalties of perjury, the following to be true:

1. I am associated with the Law Firm of Marc Wohlgemuth & Associates P.C.,

attorneys for CHAIM PORGES (hereinafter “Defendant”), the Defendant in the above-captioned

action, and as such I am familiar with the facts and circumstances surrounding this case based

upon my personal knowledge, due inquiry, and the files maintained at this office.

2. I make this Emergency Affirmation in support of the attached Order to Show Cause,

which seeks (i) vacating this Court’s Order, entered on June 24, 2022, directing the parties to

appear before a judicial hearing officer; (ii) Removing the instant action to the Supreme Court,

Kings County, Commercial Division and consolidating it with the related action entitled Chaim

Porges v. Abraham Kleinman, filed under index number 510385/2022 (hereinafter the “Vacatur

Action”; together with the instant action, the “Cases”); or, in the alternative; (iii) Staying the instant

action during the pendency of the Vacatur Action; and (iv) such other and further relief as to this

Honorable Court may deem just and proper.

3. This action centers on enforcement of an alleged debt owed by Defendant to

Plaintiff ABRAHAM KLEINMAN (hereinafter “Plaintiff”).

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4. Judgment was entered by this action upon Defendant’s purported confession on

January 10, 2022.

5. While a motion to enforce the Judgment was pending, Defendant commenced the

Vacatur Action in order to assert several bases for vacatur of the Judgment, some bases of which

could not be litigated in this case.

6. Defendant also raised some of these bases for vacatur of the Judgment in his

opposition to the motion to enforce the Judgment.

7. Prior to deciding the motion to enforce the Judgment, this Court referred the matter

to a JHO to determine whether the Judgment had been fraudulently obtained.

8. While the motion to enforce the Judgment was pending, the Kings County

Commercial Division, by the Hon. Leon Ruchelsman, J.S.C., signed an Order to Show Cause

staying all enforcement of the Judgment in light of the numerous issues with it raised in the Vacatur

Action.

9. Subsequently thereto, Plaintiff filed an Answer with Counterclaims in the Vacatur

Action, which Counterclaims included a counterclaim that seeks recovery upon the alleged debt

underlying the Judgment entered by purported confession in this case.

10. Thus, all of the issues to be decided in this action actually will be decided in the

Vacatur Action, where the issues will be more fully addressed.

11. Plaintiff has apparently reneged and refused to stipulate to the vacatur of the

Judgment in this action and its discontinuance, as had been our agreement with Plaintiff’s counsel.

12. Should the parties be forced to litigate the matter in this action by proceeding

quickly with a hearing before the JHO, the ability to fully litigate the matter before the Commercial

Division may be compromised.

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13. Moreover, the likelihood of a duplication of efforts, the squandering of the parties’

and more importantly the Court’s resources, and inconsistent judgments is high, given the

procedural posture referenced above.

14. The hearing before the JHO is currently scheduled for a few short weeks away, on

October 27, 2022, and should not be permitted to proceed (or at least an intelligent decision should

be made whether to proceed by the consolidation court once it has the entire case in front of it).

15. Thus, Plaintiff respectfully beseeches the Court to provide the relief requested on

an emergent basis.

Dated: October 3, 2022
Monsey, New York

MARC WOHLGEMUTH & ASSOCIATES P.C.

BY: _/s/Jeremy M. Doberman_______
Jeremy M. Doberman, Esq.
Attorneys for Defendant
21 Remsen Avenue, Suite 301
Monsey, New York 10952
(845) 746-2700

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------X
CHAIM PORGES, Index No.: 500593/2022
Plaintiff, Civil Action
-against-

ABRAHAM KLEINMAN, ATTORNEY AFFIRMATION
IN SUPPORT OF
Defendant. ORDER TO SHOW CAUSE
-------------------------------------------------------------------X

JEREMY M. DOBERMAN, an attorney duly admitted to practice law before the Courts

of the State of New York, hereby affirms, under the penalties of perjury, the following to be true:

PRELIMINARY STATEMENT

1. I am associated with the Law Firm of Marc Wohlgemuth & Associates P.C.,

attorneys for CHAIM PORGES (hereinafter “Mr. Porges”), the defendant in the above-captioned

action, and as such, I am familiar with the facts and circumstances surrounding this case, based

upon my personal knowledge, due inquiry, and the files maintained at this office.

2. I submit this Affirmation in support of Defendant’s Order to Show Cause, which

seeks an Order (i) vacating this Court’s Order, entered on June 24, 2022, directing the parties to

appear before a judicial hearing officer; (ii) Removing the instant action to the Supreme Court,

Kings County, Commercial Division and consolidating it with the related action entitled Chaim

Porges v. Abraham Kleinman, filed under index number 510385/2022 (hereinafter the “Vacatur

Action”; together with the instant action, the “Cases”); or, in the alternative; (iii) Staying the instant

action during the pendency of the Vacatur Action; and (iv) such other and further relief as to this

Honorable Court may deem just and proper.

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3. This action was commenced after Plaintiff, ABRAHAM KLEINMAN (hereinafter

“Mr. Kleinman”), filed a Confession of Judgment dated January 15, 2021 (hereinafter the

“Confession of Judgment”), wherein Mr. Porges purportedly admitted a debt to Mr. Kleinman.

Judgment by confession was entered by the Kings County Clerk on January 10, 2022 (hereinafter

the “Judgment”). Immediately thereafter, Mr. Kleinman moved extremely aggressively to enforce

the Judgment, including seeking a contempt order against Mr. Porges for not complying with his

discovery demands in connection with the Judgment.

4. Mr. Porges, in opposing Mr. Kleinman’s application, argued that the Confession of

Judgment was void because it failed to comply with the C.P.L.R.’s requirements for a confession

of judgment, had been materially altered (which may have constituted a crime and voided the

document on its face), and the Confession of Judgment had been procured through fraudulent

means. Concurrently with those efforts to oppose Mr. Kleinman’s application, Mr. Porges

commenced a plenary action, the Vacatur Action, before the Supreme Court, Kings County,

Commercial Division, seeking to invalidate the Confession of Judgment on any of the several

grounds.

5. Rather than litigate the issues related to the Confession of Judgment — which

Mr. Kleinman has already represented must be dealt with in the Commercial Division — in two

separate actions and rather than conducting a hearing where Mr. Kleinman has already effectively

conceded the Judgment by confession should be voided, it is respectfully submitted that the instant

action should be consolidated with the Vacatur Action in the Commercial Division.

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RELEVANT FACTUAL BACKGROUND AND PROCEDURAL POSTURE

6. On January 4, 2022, Mr. Kleinman commenced the instant action by filing the

Confession of Judgment, his Affirmation in support, a note, and a proposed judgment. See CoJ

Action NYSCEF Docket printout, annexed hereto as Exhibit A.

7. However, the Confession of Judgment was rejected and not re-filed as “corrected”

until two (2) days later. See Id.

8. The Confession of Judgment was a document that should not have changed at all

in content after it was signed by Mr. Porges. To do so would materially alter an instrument for its

filing in Court, apparently in violation of Penal Law § 170.00 et seq., New York’s criminal forgery

statute.

9. As was conceded by Mr. Kleinman’s then-attorney, Moshe Boroosan, Esq.,

(hereinafter “Mr. Boroosan”) during a conference in the Vacatur Action, Defendant and/or his

prior attorney, Efraim Lipschutz, Esq., altered the Confession of Judgment by crossing out the

actual county in which it was intended to be filed, New York County, and hand-writing in Kings

County. See the falsified Confession of Judgment as filed as “CORRECTED” on NYSCEF,

annexed hereto as Exhibit B.

10. This alteration is not merely a non-substantive change. C.P.L.R. § 3218 requires

that the affidavit of confession recite the County in which the defendant resides, and the subject

Confession of Judgment does not specify a particular county or address of residence of Plaintiff

and instead references “the address set forth both in the caption and below.” But there was no

address set forth below, and the county in the caption was changed subsequent to Mr. Porges’

signing of it. See Porges Aff., ¶¶ 19, 31, 38.

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11. On January 10, 2022, the Kings County Clerk entered its Judgment against

Mr. Porges in the total amount of $708,750.00. See NYSCEF Doc. No. 5.

12. On February 16, 2022, Mr. Kleinman filed a proposed Order to Show Cause

seeking to hold Mr. Porges in contempt for failing to comply with a deposition subpoena and

otherwise seeking to compel Mr. Porges and numerous other non-parties to respond to information

subpoenas, which this Court signed on February 22, 2022. See NYSCEF Doc. No. 35.

13. In opposing Mr. Kleinman’s Order to Show Cause, Mr. Porges described both the

Confession of Judgment’s invalidity on its face, as well as the history behind Mr. Kleinman’s

fraudulent procurement of the Confession of Judgment by, inter alia, circumventing Mr. Porges’

counsel in the underlying transaction. See NYSCEF Doc. No. 46.1

14. Although the issues appearing on the face of the Confession of Judgment were

properly considered on their merits in the instant action, and issues relating to Mr. Kleinman’s

fraud were relevant to a determination of whether to hold Mr. Porges in contempt, Mr. Porges also

sought to invalidate the Confession of Judgment because of said fraud. To do so, he needed to file

a plenary action. Thus, on April 7, 2022, pursuant to 22 N.Y.C.R.R. § 202.7(f), the undersigned

gave notice to Mr. Boroosan that an application would be being made to, inter alia, stay

enforcement of the Judgment pending adjudication of that application. See TRO Notice Emails,

annexed hereto as Exhibit C.

15. Mr. Boroosan responded to the undersigned’s email regarding notice of his

impending motion demanding that if part of Mr. Porges’ application was to vacate the Judgment,

then such application “must” be made in the Commercial Division, and if Mr. Porges “improperly

1
Mr. Porges described the history of Mr. Kleinman’s treacherous dealing in his previously filed
papers. Those facts, however, are less relevant to the instant application than the overall procedural
history of the instant action and related cases.
4

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file[d] in Civil Part, [Mr. Kleinman] w[ould] promptly seek reassignment to the Commercial

Division and then move for costs.” See Ex. C (emphasis added).

16. On April 8, 2022, Mr. Porges commenced the Vacatur Action in the Supreme Court,

Kings County, Commercial Division, in line with Mr. Boroosan’s demand that such was the only

proper venue for adjudicating the vacatur of the Judgment, which was for an amount in excess of

$700,000. See Vacatur Action Summons and Complaint, annexed hereto as Exhibit D.

17. Concurrent therewith, Mr. Porges filed his Order to Show Cause seeking vacatur of

the Judgment and requesting a temporary restraining order staying all enforcement of the

Judgment. Subsequent to oral argument upon the presentment of the Order to Show Cause, the

Honorable Leon Ruchelsman, J.S.C., signed Mr. Porges’ Order to Show Cause on April 11, 2022,

including within it the temporary restraining order staying any enforcement of the Judgment.

See Signed Order to Show Cause, annexed hereto as Exhibit E.

18. Before Mr. Porges’ Order to Show Cause could be fully briefed and decided, on

April 19, 2022, Mr. Kleinman filed a Notice of Removal removing the Vacatur Action to the

United States District Court for the Eastern District of New York, purportedly on the basis of

diversity jurisdiction as Mr. Kleinman claimed he was a resident of Florida. See Notice of

Removal, annexed hereto as Exhibit F.

19. The Federal Court sua sponte directed the parties to make submissions following

its skepticism that diversity jurisdiction existed and its belief that the Rooker-Feldman Doctrine

deprived the court of subject matter jurisdiction. On July 14, 2022, the Court found that Rooker-

Feldman did, in fact, deprive it of jurisdiction and, without determining the diversity issue,

remanded the Vacatur Action to the Supreme Court, Kings County, Commercial Division.

See Remand Order, annexed hereto as Exhibit G.

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20. The Order to Show Cause staying enforcement of the Judgment was not taken up

by the Federal Court, has never been decided, and remains pending before the Commercial

Division.

21. Also on July 14, Mr. Kleinman executed a consent to change attorney, substituting

in Heller, Horowitz & Feit, P.C. (hereinafter “HHFPC”), his current counsel, as his attorneys in

place of Mr. Boroosan. See NYSCEF Doc. No. 58.

22. On August 18, 2022, this Court filed a JHO / Special Referee Order, referring to a

judicial hearing officer the issue of whether the Confession of Judgment was fraudulently obtained.

See NYSCEF Doc. No. 59.

23. The undersigned engaged in good faith discussions with HHFPC as to the most

efficient way to litigate the dispute between the parties. Negotiations bore fruit when HHFPC

stated that it would be consenting to the discontinuance of the instant action and the vacatur of the

Judgment, agreeing that the dispute would be litigated solely in the Vacatur Action on the merits,

without the specter of the improperly obtained Judgment.

24. On August 26, 2022, Mr. Kleinman filed a Verified Answer and Counterclaims in

the Vacatur Action. See Vacatur Action Verified Answer and Counterclaims, annexed hereto as

Exhibit H. The Answer was verified by Mr. Kleinman on August 22, 2022.

25. One of Mr. Kleinman’s two counterclaims is his claim for recovery on the debt

supposedly evidenced by the Confession of Judgment for which the Judgment was entered. See

Ex. H, ¶¶ 34–41.

26. Mr. Kleinman’s interposition of and verification of such a counterclaim can only

be understood as an implementation of the agreement between the parties to vacate the Judgment,

discontinue the instant action, and litigate all of the parties’ disputes in the Vacatur Action.

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27. In line with discussions with HHFPC and as buttressed by Mr. Kleinman’s

acquiescence to filing his counterclaim in the Vacatur Action, the undersigned prepared a

stipulation vacating the Judgment and discontinuing the instant action, signed it, and sent it to

HHFPC on September 14, 2022. See Partially Executed Stipulation of to Vacate and Discontinue,

annexed hereto as Exhibit I.

28. On September 19, 2022, HHFPC notified the undersigned that it would not be able

to sign the Stipulation.

29. In light of this sudden about-face from Mr. Kleinman, the issue of whether the

Confession of Judgment was fraudulently obtained is now slated to be heard both before this Court

and in the Commercial Division’s Vacatur Action. Consequently, Mr. Porges now requests that

the instant action be consolidated in the Commercial Division with the Vacatur Action, the venue

which Mr. Kleinman’s prior counsel represented was the only proper venue where such an issue

could be heard, and where Mr. Kleinman currently has a counterclaim currently pending seeking

to recover on the sum that he also seeks in the instant action.

30. Advance notice of this application in sufficient time for Mr. Kleinman to appear

and oppose was provided to Mr. Kleinman’s counsel. See Notice pursuant to 22 N.Y.C.R.R. §

202.7(f), annexed hereto as Exhibit J.

ARGUMENT

I. THIS COURT SHOULD CONSOLIDATE THE INSTANT ACTION WITH
THE VACATUR ACTION TO BE HEARD IN THE COMMERCIAL DIVISION

31. Pursuant to C.P.L.R. § 602(a), “[w]hen actions involving a common question of

law or fact are pending before a court, the court, upon motion…may order the actions consolidated,

and may make such other orders concerning proceedings therein as may tend to avoid unnecessary

costs or delay.”

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32. Although Courts have discretion whether to consolidate cases, “consolidation is

generally favored by the courts in the interest of judicial economy and ease of decision making

where there are common questions of law and fact.” Amcan Holdings, Inc. v. Torys LLP,

32 A.D.3d 337, 339 (1st Dep’t 2006) (emphasis added) see also Gov’t Emples. Ins. Co. v. Bailey,

251 A.D.2d 627, 628 (2nd Dep’t 1998) (“[C]onsolidation is favored by the courts in serving the

interests of justice and judicial economy.”).

33. Where a party opposes consolidation, the “party resisting consolidation has the

burden of demonstrating prejudice to a substantial right.” Sokolow v. Lacher, 299 A.D.2d 64, 74,

(1st Dep’t 2002). “[A] motion to consolidate or join for trial pursuant to CPLR 602 should be

granted absent a showing of prejudice to a substantial right by the party opposing the motion.”

Oboku v. N.Y.C. Transit Auth., 141 A.D.3d 708, 709 (2nd Dep’t 2016) (emphasis added).

34. Despite the discretion afforded to trial courts in ruling on a motion to consolidate,

where a party opposing consolidation “failed to show prejudice to a substantial right,” the Second

Department has recognized that “the Supreme Court improvidently exercised its discretion in

denying the motion to consolidate.” Lecorps v. Bromberg, 127 A.D.3d 931, 932-33

(2nd Dep’t 2015).

35. As discussed infra, the Cases should be consolidated because they are predicated

on the same factual and legal issues and no prejudice would inure to Mr. Kleinman by said

consolidation.

A. The Instant Action and the Vacatur Action Should Be Consolidated

36. It is eminently clear that the instant action and the Vacatur Action almost entirely

turn on “common question[s] of law or fact.” C.P.L.R. § 602(a).

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37. Of the five causes of action alleged in the Vacatur Action, four of them seek relief

of either the rescission of the Note and Confession of Judgment or vacatur of the Judgment based

on Mr. Kleinman’s fraud.2 See generally Ex. D.

38. Furthermore, one of Mr. Kleinman’s counterclaims in the Vacatur Action literally

seeks the exact same relief for the exact same circumstances as that sought in the instant action,

a judgment on the $675,000 note which was filed in this action. Compare NYSCEF Doc. No. 3

with Ex. H, ¶¶ 34–41.

39. Mr. Porges filed the Vacatur Action, rather than litigating the matter in this case,

because “[g]enerally,3 a person seeking to vacate a judgment entered upon the filing of an affidavit

of confession of judgment must commence a separate plenary action for that relief,” particularly

“contentions that the judgment by confession must be vacated on the grounds of fraud and breach

of contract.” Regency Club at Wallkill, LLC v. Bienish, 95 A.D.3d 879, 879 (2nd Dep’t 2012).

40. This Court made clear that the issue of Mr. Kleinman’s alleged fraudulent

procurement of the Confession of Judgment is a central issue in the instant action, when it referred

to a Judicial Hearing Officer the issue of “[w]hether the confession of judgment from Defendant,

Chaim Porges, was fraudulently obtained.” See NYSCEF Doc. No. 59.

41. If the Cases are not consolidated, the exact same legal and factual issues

surrounding the Confession of Judgment will need to be litigated twice before two separate courts,

which, to put it mildly, would not serve “the interests of justice and judicial economy.” Gov’t

Emples. Ins. Co., 251 A.D.2d at 628.

2
The other cause of action seeks damages stemming from said fraud. See Ex. D, ¶ 53.
3
Notably, certain of Mr. Porges’ arguments for vacatur of the Judgment were premised on
deficiencies apparent on the face of the Confession of Judgment, which were properly addressed
to this Court. See Ripoll v. Rodriguez, 53 A.D.2d 638, 638, (2nd Dept. 1976) (“Confession of
judgment entered without authority may be vacated on motion.”).
9

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42. Indeed, consolidation is all the more so necessary “where it will avoid unnecessary

duplication of trials, save unnecessary costs and expense, and prevent an injustice which would

result from divergent decisions based on the same facts.” Scotto v. Kodsi, 102 A.D.3d 947, 948

(2nd Dep’t 2013). To have this Court and the Commercial Division independently decide the issue

of the validity of the Confession of Judgment and the Judgment which flowed therefrom could

lead to inconsistent results.

43. Because the fundamental factual and legal issues related to the Confession of

Judgment are central to both the instant action and the Vacatur Action, the Cases should be

consolidated.

B. The Consolidated Action Should Be Adjudicated in the Commercial Division

44. Although there is a default presumption that actions consolidated pursuant to

C.P.L.R. § 602 should be consolidated in the Court “where the first action was commenced,”

Ressler & Ressler v. Friedman, 128 A.D.3d 447, 447 (1st Dep’t 2015), it has been recognized that

the Court can instead order a consolidated action to a different venue “to promote the ends of

justice.” Lopez v. Chaliwit, 268 A.D.2d 377, 377 (1st Dep’t 2000).

45. The Commercial Division is the appropriate venue to consolidate the Cases, as the

amount in controversy in the Cases significantly exceeds the monetary threshold of $150,000 in

Kings County, 22 N.Y.C.R.R. § 202.70(a), and this is an action for said amount and declaratory

relief in which the principal claim involves fraud, 22 N.Y.C.R.R. § 202.70(b).

46. Moreover, not only did Mr. Kleinman, through counsel, already agree that the

Commercia

Case Info

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Carolyn E Wade Track Judge’s New Case

Case No.

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Document Filed Date

October 07, 2022

Case Filing Date

January 04, 2022

County

Parties

Abraham Kleinman Plaintiff
BLANDER, STUART A. Attorney for the Plaintiff
BOROOSAN, MOSHE OVADYA Attorney for the Plaintiff
Chaim Porges Defendant
FABI, DIANA Attorney for the Plaintiff
LIPSCHUTZ, EFRAIM SAMUEL Attorney for the Plaintiff
SORENSON, SIGURD ANSGAR Attorney for the Plaintiff
WEISS, MEIR DAVID Attorney for the Plaintiff
WOHLGEMUTH, URI M Attorney for the Defendant
JEREMY DOBERMAN Attorney
ISAAC DISKIND Attorney
JASON REBHUN Attorney
MARK NUSSBAUM Attorney
LUCAS SAMBROOK Attorney

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No Value: Abraham Kleinman v. Chaim Porges

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