Motion,Ex Parte: William Anderson Wittekind v. Jp Morgan Securities Llc

On August 09, 2022 a Motion,Ex Parte was filed involving a dispute between William Anderson Wittekind, and Jp Morgan Securities Llc, for Commercial - Business Entity - Commercial Division in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------- x
WILLIAM ANDERSON WITTEKIND, :
: Index No. 652799/2022
Plaintiff, :
:
- against - :
:
:
JP MORGAN SECURITIES LLC, :
:
Defendant. :
--------------------------------------- :
x

MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFF’S ORDER TO SHOW CAUSE

GREENBERG TRAURIG, LLP
One Vanderbilt Avenue
New York, New York 10007
(212) 801-9200

Attorneys for Defendant
JP Morgan Securities LLC

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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .....................................................................................................1

BACKGROUND FACTS ................................................................................................................2

ARGUMENT ...................................................................................................................................3

POINT I
PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION SHOULD BE
DENIED ...........................................................................................................................................3

A. Plaintiff Fails To Establish A Likelihood Of Success On The Merits .....................4

1. Plaintiff Fails To Make The Requisite Evidentiary Showing Of
Likelihood Of Success On The Merits Seeking Declaratory
Judgment (COUNT I) ..................................................................................4

2. Plaintiff Fails To Establish With Evidentiary Proof That JPMS
breached any Contractual Obligation With Respect to the Joint
Account (COUNT II) ...................................................................................6

3. Plaintiff Fails To Establish With Evidentiary Proof That JPMS
breached any Implied Covenant With Respect to the Joint Account
(COUNT III). ...............................................................................................8

4. Plaintiff Fails To Establish With Evidentiary Proof That JPMS
Converted the Assets in Plaintiffs Accounts (COUNT IV). ........................9

5. Plaintiff Fails To Establish With Evidentiary Proof That JPMS
Breached any Fiduciary Duty to Plaintiff (COUNT V). ..............................9

B. Plaintiff Fails to Demonstrate That He Will Suffer Imminent, Irreparable
Harm ......................................................................................................................10

C. A Balancing of the Equities Favors the Denial of Injunctive Relief .....................11

CONCLUSION ..............................................................................................................................13

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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Benitez v. King,
298 F.Supp.3d 530 (W.D. N.Y. 2018) .......................................................................................3
Fleisig v. ED&F Man Capital Mkts., Inc.,
No. 19cv8217 (DLC), 2021 U.S. Dist. LEXIS 122529 (S.D.N.Y. June 30,
2021) ....................................................................................................................................7, 12

State Cases

A. John Merola, M.D., P.C. v. Telonis,
127 A.D.2d 1007, 513 N.Y.S.2d 66 (4th Dept. 1987) ...............................................................4
Aetna Ins. Co. v. Capasso,
75 N.Y.2d 860, 552 N.Y.S.2d 918 (1990) .................................................................................3
Allied-Crossroads Nuclear Corp. v. Atcor, Inc.,
25 A.D.2d 643, 268 N.Y.S.2d 400 (1st Dept. 1966)..................................................................4
Barbes Restaurant, Inc. v. ASRR Suzer 218, LLC,
140 A.D.3d 430 (1st Dept. 2016)...............................................................................................3
Besen v. Farhadian,
195 A.D.3d 548, 151 N.Y.S.3d 31 (1st Dept. 2021)..................................................................9
Brodsky v. City of Rochester,
142 A.D.2d 1002, 530 N.Y.S.2d 421 (4th Dept. 1988) .............................................................3
Canstar v Jones Constr. Co.,
212 A.D.2d 452, 622 N.Y.S.2d 730 (1995) ...............................................................................8
Canzona v. Atanasio,
2014 NY Slip Op 4458, 118 A.D.3d 837, 989 N.Y.S.2d 44 (App. Div. 2nd
Dept.) .........................................................................................................................................6
CIP GP 2018, LLC v. Koplewicz,
194 A.D.3d 639, 150 N.Y.S.3d 51 (1st Dept. 2021)..................................................................9
Council of City of New York v. Giuliani,
248 A.D.2d 1, 679 N.Y.S.2d 14 (1st Dept. 1998)......................................................................4
Credit Index, L.L.C. v. Riskwise Int’l L.L.C.,
282 A.D.2d 246, 722 N.Y.S.2d 862 (1st Dept. 2001)........................................................10, 11
Doe v. Axelrod,
73 N.Y.2d 748, 536 N.Y.S.2d 44 (1988) ...................................................................................3
Faberge International, Inc. v. DiPino,
109 A.D.2d 235, 491 N.Y.S.2d 345 (1st Dept. 1985)................................................................3

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Golden v. Steam Heat, Inc.,
216 A.D.2d 440, 628 N.Y.S.2d 375 (2d Dept. 1995) ..............................................................10
Hawthorne Grp., LLC v. RRE Ventures,
7 A.D.3d 320, 776 N.Y.S.2d 273 (App. Div. 1st Dept. 2004) ...................................................8
Margolies v. Encounter, Inc.,
42 N.Y.2d 475, 398 N.Y.S.2d 877 (1977) .................................................................................4
MBIA Ins. Corp. v. Merrill Lynch,
81 A.D.3d 419, 916 N.Y.S.2d 54 (1st Dept. 2011)....................................................................8
McGuinn v. City of New York,
219 A.D.2d 489 (1st Dept. 1995)...............................................................................................4
Nero v. Fiore,
165 A.D.3d 823, 86 N.Y.S.3d 96 (2nd Dept. 2018) ..................................................................9
New York Auto. Ins. Plan v. New York Sch. Ins. Reciprocal,
241 A.D.2d 313 (1st Dept. 1997)...............................................................................................3
New York City Off-Track Betting Corp. v. New York Racing Ass’n, Inc.,
250 A.D.2d 437, 673 N.Y.S.2d 387 (1st Dept 1998).........................................................10, 11
Matter of P. & E. T. Found.,
204 A.D.3d 1460, 167 N.Y.S.3d 270 (4th Dept. 2022) ...........................................................10
People's Nat'l Bank v. Hitchcock,
104 Misc. 2d 647, 428 N.Y.S.2d 850 (Sup. Ct. 1980) .............................................................11
Scotto v. Mei,
219 A.D.2d 181, 642 N.Y.S.2d 863 (1st Dept. 1996)................................................................3
SportsChannel America Assocs. v. National Hockey League,
186 A.D.2d 417, 589 N.Y.S.2d 2 (1st Dept. 1992)............................................................10, 11
Matter of Town Bd. of Town of Brighton v. W. Brighton Fire Dept., Inc.,
2015 NY Slip Op 02581, 126 A.D.3d 1433, 7 N.Y.S.3d 736 (App. Div. 4th
Dept.) .........................................................................................................................................5
W.T. Grant Co. v. Srogi,
52 N.Y.2d 496, 438 N.Y.S.2d 761 (1981) .................................................................................3

State Statutes

N.Y. Bank. Law § 675 .....................................................................................................................7

Regulations

17 CFR § 240.15c3-3 ...................................................................................................................7, 8

Other Authorities

23 Broker-Dealer Operations Sec. & Comm. Law § 5:3 .................................................................8

iii

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McKinney's Banking Law Sec. 675 (Oct. 2011) ..............................................................................7

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PRELIMINARY STATEMENT

Defendant JP Morgan Securities LLC (“Defendant” or “JPMS”) respectfully submits this

memorandum of law in opposition to plaintiff William Anderson Wittekind’s (“Plaintiff” or “Mr.

Wittekind”) motion brought on by Order to Show Cause seeking a Temporary Restraining Order

and Preliminary Injunction (i) enjoining JPMS from attaching Plaintiff’s shares of Enochian

Biosciences, Inc. (“ENOB”) stock pursuant to a sealed Writ of Attachment issued in the

Vermont Action (the “Vermont Action”); and (ii) releasing and delivering the shares to Plaintiff.

The instant matter stems from JPMS’s decision to freeze the ENOB shares held in a joint

account (the “Joint Account”) between Plaintiff and his spouse, Serhat Gumrukcu. Public

records reflect that Mr. Gumrukcu, the inventor of the science behind ENOB, and the company’s

co-founder, is currently awaiting trial in a murder-for-hire scheme in Vermont Court. In a

separate civil action for wrongful death, brought by the widow of the murder victim, the

Vermont Court issued a Writ of Attachment (the “Writ”) for all of the Mr. Gumrukcu’s shares of

stock in ENOB. Upon learning about the motion for this Writ, JPMS froze only the ENOB shares

held in the Joint Account, and pursuant to the issuance of the Writ, JPMS maintains its position.

All ENOB shares held by Plaintiff (in any individual or trust account at JPMS) have already been

delivered to him.

As shown below, Plaintiff fails to establish the elements essential to obtaining a

preliminary injunction: (1) a likelihood of success on the merits; (2) irreparable harm; and (3) a

balancing of the equities in his favor. Plaintiff has no likelihood of success on the merits for

several reasons: (1) JPMS has not breached any contract as the agreements governing Plaintiff’s

accounts expressly permit JPMS to restrict the accounts; (2) JPMS has not converted the assets,

which are being held pending resolution of a third-party attachment order or other instruction

from a court; (3) the remedy of declaratory judgement is only appropriate where a conventional
ny-srv01\1116870v01

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form of remedy is not available, which is not the case here; (4) Plaintiff does not allege breach of

any covenant separate from his breach of contract claim and (5) JPMS has not breached any

duties to Plaintiff by lawfully restricting the accounts pending further instruction from a court.

Additionally, Plaintiff has failed to demonstrate that he will suffer irreparable harm

absent injunctive relief. Plaintiff has failed to adequately allege how he has been damaged,

much less explain how those supposed damages cannot be adequately compensated monetarily.

He does not because he cannot. (1) the contract authorizes freezing the account, and by agreeing

to that, Wittekind gave up the right to sue for a lost profits-type theory based on decreased value

of the shares, and (2) the subject securities are being held and have not been converted.

Finally, the equities balance in JPMS’s favor since JPMS is acting within its rights to

restrict the accounts for any reason. In the instant matter, the assets in the Joint Account are at

least partially subject to a Writ of Attachment in a wrongful death proceeding against one of the

joint account holders. JPMS’s obligation to comply with a valid Writ of Attachment and to

protect the assets subject thereto, surely outweighs the concern over speculative financial loss of

Plaintiff in this action.

BACKGROUND FACTS

The Court is respectfully referred to the accompanying Affirmation of Evelyn Bukchin

(the “Bukchin Aff.”), dated August 23, 2022, for a recitation of the pertinent facts. 1

1
Except as otherwise noted, all exhibits are annexed to the Bukchin Aff.

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ARGUMENT

POINT I

PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION SHOULD BE DENIED

To establish entitlement to a preliminary injunction, the moving party must prove: (1) a

likelihood of success on the merits; (2) irreparable harm in the absence of the requested

injunctive relief; and (3) a balancing of the equities in the moving party’s favor. Aetna Ins. Co.

v. Capasso, 75 N.Y.2d 860, 552 N.Y.S.2d 918 (1990); Doe v. Axelrod, 73 N.Y.2d 748, 750, 536

N.Y.S.2d 44, 45 (1988); W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 438 N.Y.S.2d 761 (1981). The

movant “bears the burden of establishing his undisputed entitlement to a preliminary injunction

through the tender of evidentiary proof.” Brodsky v. City of Rochester, 142 A.D.2d 1002, 1003,

530 N.Y.S.2d 421, 422 (4th Dept. 1988). When "key facts are in dispute, the relief will be

denied" Scotto v. Mei, 219 A.D.2d 181, 184, 642 N.Y.S.2d 863, 865 (1st Dept. 1996) citing

Faberge International, Inc. v. DiPino, 109 A.D.2d 235, 491 N.Y.S.2d 345 (1st Dept. 1985).

The purpose of a preliminary injunction is to maintain the status quo pending the

outcome of the litigation. See, e.g., See, e.g., Barbes Restaurant, Inc. v. ASRR Suzer 218, LLC,

140 A.D.3d 430, 431 (1st Dept.. 2016); see also New York Auto. Ins. Plan v. New York Sch. Ins.

Reciprocal, 241 A.D.2d 313, 315 (1st Dept. 1997) (a preliminary injunction that substantially

changes the status quo must be denied.); Benitez v. King, 298 F.Supp.3d 530, 535 (W.D. N.Y.

2018). The preliminary relief sought by Plaintiff would not serve to maintain the status quo

pending the outcome of litigation. To the contrary, Plaintiff seeks a mandatory injunction and

declaration that would alter the status quo by commanding affirmative acts. An injunction

ordering the for immediate release of the shares to Plaintiff would serve to permanently remove

the Shares from joint ownership of Mr. Gumurkcu and thereby eliminate any possibility of

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attachment by the Vermont Court or recovery by the plaintiff in the Vermont Action. Such a

permanent result is contrary to the purpose of preliminary injunction.

The Court of Appeals has cautioned that a preliminary injunction “is an extraordinary

provisional remedy to which a plaintiff is entitled only on a special showing. It operates as a

substantial limitation on the defendant’s interests prior to any adjudication of the respective

rights of the parties on the merits of the controversy between them.” Margolies v. Encounter,

Inc., 42 N.Y.2d 475, 479, 398 N.Y.S.2d 877, 880 (1977); see also Council of City of New York v.

Giuliani, 248 A.D.2d 1, 5, 679 N.Y.S.2d 14, 16 (1st Dept. 1998). “A preliminary injunction is a

drastic remedy that should not be granted unless a clear legal right thereto is

shown.” See McGuinn v. City of New York, 219 A.D.2d 489 (1st Dept. 1995). Furthermore, the

injunctive relief must be clearly “urgent” and “necessary”:

It is well settled that an injunction pendente lite will not ordinarily
be granted where the effect thereof is to grant the plaintiff the same
relief which may ultimately be obtained after a trial on the merits.
Unless the plaintiff clearly demonstrates the necessity and urgency
for relief in advance of a trial, including the sustaining in the
meantime of irreparable injury, the injunctive remedy will be
withheld pending the trial.

Allied-Crossroads Nuclear Corp. v. Atcor, Inc., 25 A.D.2d 643, 644, 268 N.Y.S.2d 400, 401

(1st Dept. 1966), quoted in A. John Merola, M.D., P.C. v. Telonis, 127 A.D.2d 1007, 513

N.Y.S.2d 66 (4th Dept. 1987). Plaintiff fails to meet any of these stringent criteria.

A. Plaintiff Fails To Establish A Likelihood Of Success On The Merits

1. Plaintiff Fails To Make The Requisite Evidentiary Showing Of Likelihood Of
Success On The Merits Seeking Declaratory Judgment (COUNT I)

Plaintiff asks this court to declare that: (1) the disputed Shares are Plaintiff’s separate

property and under his exclusive control; (2) Plaintiff may withdraw his Shares without

impediment from the Joint Account. However, the remedy of declaratory judgement is only

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appropriate where a conventional form of remedy is not available, which is not the case here.

Matter of Town Bd. of Town of Brighton v. W. Brighton Fire Dept., Inc., 2015 NY Slip Op

02581, ¶ 2, 126 A.D.3d 1433, 1435, 7 N.Y.S.3d 736, 738 (App. Div. 4th Dept.). To the contrary,

any purported damages (which JPMS vehemently denies) can be adequately remedied by the

issuance of a monetary judgement.

Moreover, pursuant to the Customer Agreement upon which Plaintiff relies to support the

alleged breach of contract claims in this action, Plaintiff can (and must) bring his claim in

arbitration, before FINRA. The Customer Agreement states as follows:
BY SIGNING THIS AGREEMENT YOU AND J.P. MORGAN
AGREE THAT CONTROVERSIES ARISING UNDER OR
RELATING TO THIS AGREEMENT OR ANY ACTIVITY
BETWEEN YOU AND J.P. MORGAN, ITS PREDECESSORS,
AND ANY OF THEIR RESPECTIVE SUCCESSORS, ASSIGNS,
AND ANY OF THEIR DIRECTORS, EMPLOYEES, AND ANY
OTHER CONTROL PERSONS AND ANY OF THEIR AGENTS,
WHETHER ARISING PRIOR TO, ON OR SUBSEQUENT TO
THE DATE HEREOF, SHALL BE DETERMINED BY
ARBITRATION AND IN ACCORDANCE WITH THE RULES OF
THE FINANCIAL INDUSTRY REGULATORY AUTHORITY,
INC. (“FINRA”) BEFORE AN ARBITRATION PANEL
APPOINTED BY FINRA IN ACCORDANCE WITH ITS RULES
AND SUCH HEARING OR HEARINGS SHALL BE CONDUCTED
IN A LOCALE SELECTED BY FINRA. THE AWARD OF THE
ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE
FINAL, AND JUDGMENT UPON THE AWARD RENDERED
ED IN ANY COURT, STATE OR FEDERAL, HAVING
JURISDICTION.

See Ex. 1, p 7 to Bukchin Aff. (emphasis in original).

If Plaintiff believes that the Shares were wrongfully restricted (they were not), conventional

remedies are available to him in an arbitration proceeding before FINRA. 2 Accordingly,

2
If required to Answer or otherwise respond to the underlying Complaint filed by Plaintiff in this action, JPMS
intends to move to compel arbitration before FINRA. The Customer Agreement at issue contains an express
arbitration clause and, accordingly, the merits of the underlying action must be arbitrated before FINRA. See
Customer Agreement, pp.6-7. Notably, Plaintiff is aware of his obligation to arbitrate because immediately
prior to filing the instantaction he attempted to file an action before the AAA. JPMS did not submit to
jurisdiction before AAA and pointed Plaintiff to his obligation to file the action before FINRA in accordance
with the terms in the Customer Agreement. Instead, he ignored that obligation and filed the instant action. By
filing this opposition to Plaintiff’s request for provisional remedies JPMS does not waive, and hereby expressly
reserves, its right to compel arbitration in accordance with the terms of the Customer Agreement.

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Plaintiff has failed to adequately show the likelihood of success of obtaining a declaratory

judgement from this Court.

2. Plaintiff Fails To Establish With Evidentiary Proof That JPMS breached any
Contractual Obligation With Respect to the Joint Account (COUNT II)

Upon establishing the Joint Account at issue, Plaintiff and his spouse executed a valid

and enforceable Customer Agreement and Joint Account With Right of Survivorship Agreement

(the “Joint Account Agreement”) (collectively, the “Agreements”). Plaintiff alleges that by

failing to deliver the Shares, JPMS breached the Customer Agreement.

The essential elements of a breach of contract cause of action are "the existence of a

contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her

contractual obligations, and damages resulting from the breach"

Canzona v. Atanasio, 2014 NY Slip Op 4458, ¶ 2, 118 A.D.3d 837, 838, 989 N.Y.S.2d 44, 47

(App. Div. 2nd Dept.).

The Agreements contain broad exculpatory clauses that expressly permit JPMS to restrict

the accounts whenever JPMS may consider itself at risk for any reason with respect to the

account or to comply with applicable laws. Specifically, Section 17 of the Customer Agreement

governing the Joint Account executed by Claimant and his Spouse states:

J.P. Morgan, in its sole discretion and without notice to
you, may (whenever J.P. Morgan may consider itself at
risk for any reason with respect to your Account(s),
consider it necessary for its or your protection and/or to
comply with Applicable Laws) (i) freeze your
Account(s) in whole or in part; (ii) refuse to accept any
order for execution, clearance or settlement and may
restrict or prohibit trading of securities or other property
in any of your Account(s); and (iii) close out any
commitment, buy-in any securities or property to cover a
short sale and sell any and all securities or property in
any of your Account(s). And you shall nevertheless
remain liable for all of your Obligations to J.P. Morgan
under this Agreement or otherwise.

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See Ex. 1, p 5 to Bukchin Aff..

Similarly, The Joint Account Agreement, also executed by Plaintiff and his spouse,

similarly permits JPMS to restrict the Joint Account as follows:

JP Morgan, in its sole discretion, may at any time refuse
to accept any order for execution, clearance or settlement
and may restrict or prohibit trading of securities or other
property in the Account or require that requests
pertaining to the Account or the property therein be in
writing and signed by the account holders.

See Ex. 2 to Bukchin Aff.

Plaintiff makes no allegation that the Agreements or the applicable provisions are invalid.

Where a customer agreement permits a broker-dealer to restrict the account, there can be no

breach of contract for doing exactly that. Fleisig v. ED&F Man Capital Mkts., Inc., No.

19cv8217 (DLC), 2021 U.S. Dist. LEXIS 122529, at *24-27 (S.D.N.Y. June 30, 2021). (Holding

that “[b]ecause [firm] did not take any action that was not expressly permitted by its contracts

with the plaintiffs, the plaintiff’s claims for breach of contract are unavailing.”)

Moreover, while JPMS clearly had the authority to restrict the accounts for any reason,

there can be no doubt that JPMS had a legitimate basis for its actions because the Shares are

presumed by law to be jointly held. Specifically, pursuant to New York Banking Law §675, there

is a rebuttable presumption that when a deposit of securities is made into a joint brokerage

account, such property shall become the property of both account holders as joint tenants.

McKinney's Banking Law Sec. 675 (Oct. 2011). JPMS is not in the position, nor does it have any

obligation, to determine whether such presumption of joint tenancy has been rebutted.

Finally, Plaintiff’s invocation of Rule 15c3-3 in his breach of contract claim likewise falls

short. The SEC has made clear that the intent of Rule 15c3-3 is to:

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require a broker-dealer to hold customer assets in a manner
that enables their prompt return in the event of an insolvency,
which, in turn, increases the ability of the firm to wind down
in an orderly self-liquidation and, thereby avoid the need for a
proceeding under the Securities Investor Protection
Act of 1970,
23 Broker-Dealer Operations Sec. & Comm. Law § 5:3.

No interpretation of Rule 15c3-3 would permit a party to avoid enforcement of an

attachment order by simply transferring securities out of an account. Moreover, even if the

Rule did apply, which it does not, Rule 15c3-3 does not confer a private right of action upon

Plaintiff. Thus, assuming arguendo that Plaintiff’s conclusory assertions established a

violation of Rule 15c3-3, he still could not seek recovery from JPMS as a matter of law.

Accordingly, as JPMS’s actions were taken entirely pursuant to the terms of the valid

Agreements, Plaintiff fails to establish any breach by JPMS.

3. Plaintiff Fails To Establish With Evidentiary Proof That JPMS breached any
Implied Covenant With Respect to the Joint Account (COUNT III).

Plaintiff’s claim for breach of the covenant of good faith and fair dealing must also fails.

An action for breach of the covenant of good faith and fair dealing "cannot be maintained [when]

it is premised on the same conduct that underlies [a] breach of contract cause of action and is

intrinsically tied to the damages allegedly resulting from a breach of the contract." MBIA Ins.

Corp. v. Merrill Lynch, 81 A.D.3d 419, 420, 916 N.Y.S.2d 54 (1st Dept. 2011) citing Hawthorne

Grp., LLC v. RRE Ventures, 7 A.D.3d 320, 323, 776 N.Y.S.2d 273, 276 (App. Div. 1st Dept.

2004). See also, Canstar v Jones Constr. Co., 212 A.D.2d 452, 453, 622 N.Y.S.2d 730 [1995]).

Plaintiff argues that JPMS breached the covenant of good faith and fair dealing by refusing to

deliver the Shares upon Plaintiff’s demand, destroying his right to receive the benefits of the

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Agreement. This is the same underlying conduct that Plaintiff alleges resulted in the breached of

explicit provisions of the Agreements. Therefore, the claim cannot survive.

4. Plaintiff Fails To Establish With Evidentiary Proof That JPMS Converted
the Assets in Plaintiffs Accounts (COUNT IV).

Plaintiff’s cause of action for conversion must similarly fail. The two key elements of

conversion are (1) the plaintiff's legal ownership or an immediate superior right of possession to

a specific identifiable thing, and (2) the defendant's unauthorized dominion over the thing in

question or interference with it, to the exclusion of the plaintiff's right.

Nero v. Fiore, 165 A.D.3d 823, 825, 86 N.Y.S.3d 96, 99 (2nd Dept. 2018). Plaintiff cannot

establish an “unauthorized dominion” over the Shares, as JPMS was entirely within its

contractual rights pursuant to the Agreements to restrict Plaintiff’s access to the Shares.

Accordingly, Plaintiff cannot establish a cause of action for conversion.

5. Plaintiff Fails To Establish With Evidentiary Proof That JPMS Breached
any Fiduciary Duty to Plaintiff (COUNT V).

To recover for a breach of fiduciary duty, a plaintiff must demonstrate that the defendant

owed him a fiduciary duty, that the defendant committed misconduct, and that the plaintiff

suffered damages caused by that misconduct. Besen v. Farhadian, 195 A.D.3d 548, 549, 151

N.Y.S.3d 31, 34 (1st Dept. 2021). Plaintiff argues that JPMS breached its fiduciary duty by

refusing to deliver the Shares to him. Plaintiff’s claim is defective for several reasons. First, the

Plaintiff argues that this same conduct also breached their contracts with JPMS. However, New

York law does not permit a plaintiff to pursue a breach of fiduciary duty claim that is

"duplicative of [a] breach of contract claim." CIP GP 2018, LLC v. Koplewicz, 194 A.D.3d 639,

639, 150 N.Y.S.3d 51 (1st Dept. 2021). Second, the Plaintiff cannot show that JPMS committed

any misconduct in refusing to deliver the Shares because the Agreements governing the accounts

expressly allowed JPMS to restrict the accounts at its sole discretion. JPMS became aware of the

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pending Writ of Attachment and was entitled to exercise its contractual right to freeze the assets.

Accordingly, Plaintiff cannot show that JPMS breached any fiduciary duty owed to Plaintiff.

B. Plaintiff Fails to Demonstrate That He Will Suffer Imminent, Irreparable Harm

Even assuming, arguendo, that Plaintiff is able to establish a likelihood of success on the

merits (which JPMS vehemently disputes), he is not entitled to the injunctive relief he seeks

because he will not suffer any imminent or irreparable harm. First, JPMS has restricted

withdrawal of the Shares from the Joint Account. Accordingly, no further provisional remedies

are necessary to preserve the status quo. Moreover, any alleged damages sustained by Plaintiff

can be compensated by way of monetary relief. In this regard, it is well settled that “[d]amages

compensable in money and capable of calculation, albeit with some difficulty, are not

irreparable” and do not warrant the granting of injunctive relief. SportsChannel America Assocs.

v. National Hockey League, 186 A.D.2d 417, 418, 589 N.Y.S.2d 2, 3 (1st Dept. 1992); see also

Credit Index, L.L.C. v. Riskwise Int’l L.L.C., 282 A.D.2d 246, 722 N.Y.S.2d 862 (1st Dept.

2001); New York City Off-Track Betting Corp. v. New York Racing Ass’n, Inc., 250 A.D.2d 437,

673 N.Y.S.2d 387 (1st Dept 1998). Moreover, it is well settled that the prospect of irreparable

harm must be "imminent, not remote or speculative" Matter of P. & E. T. Found., 204 A.D.3d

1460, 1461, 167 N.Y.S.3d 270, 272 (4th Dept. 2022) citing Golden v. Steam Heat, Inc., 216

A.D.2d 440, 628 N.Y.S.2d 375 (2d Dept. 1995). Plaintiff has completely failed to establish this

element.

In this regard, Plaintiff alleges in its moving papers that “without this Court granting

Plaintiff’s requested relief, JPMS will improperly attach Mr. Wittekind’s Shares to the Clerk of

the Court in the Vermont Action, resulting in the irreparable loss of the Shares” (Zareh Aff. at

¶39). However, JPMS’s compliance with a lawful court order cannot be a basis for recovery or

damages to Plaintiff.

15 of 18
FILED: NEW YORK COUNTY CLERK 08/23/2022 08:43 PM INDEX NO. 652799/2022
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/23/2022

Moreover, even assuming arguendo that Plaintiff was entitled to damages – which he is

not - loss of shares can still be remedied with financial compensation. Plaintiff also references

alleged financial da

Case Info

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Jennifer G. Schecter Track Judge’s New Case

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Document Filed Date

August 23, 2022

Case Filing Date

August 09, 2022

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Motion,Ex Parte: William Anderson Wittekind v. Jp Morgan Securities Llc

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