Preview
FILED: NEW YORK COUNTY CLERK 02/11/2023 04:42 PM INDEX NO. 654412/2022
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/11/2023
SUPREME COURT FOR THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
ABNB INVESTMENT LLC,,
Index No.: 654412/2022
Plaintiff,
AFFIRMATION
-against- IN REPLY
MICHAEL MANN, MANN CAPITAL GROUP, LLC
and MCGI GROUP LLC,
Defendants.
----------------------------------------------------------------------X
JEFFREY CHABROWE, ESQ., an attorney duly admitted to practice law by and
before the courts of the State of New York, affirms the following to be true under penalty of
perjury: I am associated with the Law Office of Jeffery Chabrowe, P.C., attorney(s) for the
Defendants, MICHAEL MANN, MANN CAPITAL GROUP, LLC and MCGI GROUP LLC.
As such, I am fully familiar with the facts and circumstances heretofore and herein by virtue of
my review of the file maintained by my office.
I submit this Affirmation in Reply, in further support of Defendants’ request that the
Court issue an Order: 1) pursuant to CPLR §6223, vacating the Court’s December 22, 2022
Order of Attachment, Temporary Restraining Order, and Preliminary Injunctive Relief; and 2)
for such other and further relief as this Court may deem just and proper.
PRELIMINARY STATEMENT
Plaintiff’s Opposition falls well short of the requisite evidentiary showing to sustain the
“harsh and extraordinary”1 remedy of pre-judgment attachment. Plaintiff sheds considerable ink
1
JSC Foreign Econ. Ass'n Technostroyexport v Int'l Dev. & Trade Servs., 306 F. Supp. 2d 482, (S.D.N.Y. 2004).
1
1 of 4
FILED: NEW YORK COUNTY CLERK 02/11/2023 04:42 PM INDEX NO. 654412/2022
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/11/2023
stridently parroting the allegations of the complaint, supplemented only by cherry-picked bank
statements and irrelevant email exchanges.
Yet Plaintiff’s high burden was to provide evidentiary facts evincing an actual intent to
frustrate Plaintiff’s ability to collect on a judgment,2 and nothing about this litigation suggests
such an intent. The Defendants are here, represented by counsel. They have not skipped town,
closed bank accounts, or become unreachable. To the contrary, they have answered the
complaint, filed the instant motion, and produced responses to Plaintiff’s considerable document
demands.3 As Plaintiff now concedes, they also asked Plaintiff’s counsel to agree to a brief
adjournment of the December 22, 2022, court date which led to the present attachment being
granted as “unopposed.” Nevertheless, Plaintiff fights to maintain the pre-judgment attachment
for virtually any assets or real property which the Defendants may own (NYSCEF No. 21),
despite there being no legal basis for such an extreme remedy. Furthermore, as Plaintiff well
knows, the existing attachment has never been “unopposed” by Defendants, Plaintiff’s rich
allegations of defense counsel’s “gamesmanship” notwithstanding. Accordingly, justice demands
that the Court’s December 22, 2022, Order be vacated.
Plaintiff’s Case for Attachment Remains Speculative, Strained, and Conclusory
Plaintiff’s original case for attachment was supported only by an unsigned investor’s
agreement, and two financial statements, one purported to be fabricated and the other purported
to be authentic ((NYSCEF Nos. 2-4). Plaintiff’s present case adds some T.D. Bank statements to
the mix that Plaintiff speculates may “suggest,” Defendants will intentionally seek to frustrate
Plaintiff’s ability to collect on a judgment. Perhaps aware of the baseless and conjectural nature
2
See, e.g.., Maitrejean v Levon Properties Corp., 45 A.D.2d 1020 (N.Y. App. Div. 2d Dep't 1974).
3
Defendants’ responses were served February 8, 2023.
2
2 of 4
FILED: NEW YORK COUNTY CLERK 02/11/2023 04:42 PM INDEX NO. 654412/2022
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/11/2023
of this, Plaintiff seeks to shift the burden to Defendants, denouncing their failure to provide an
“affidavit” setting forth their side of the case (Plaintiff’s Opp. p. 2). But the law is clear: under
CPLR § 6212, the burden is on the party seeking attachment to establish grounds for it.
Asdourian v. Konstantin, 50 F. Supp. 2d 152, 1999 U.S. Dist. LEXIS 7585 (E.D.N.Y. 1999).
CPLR §6223 makes equally plain that “Upon a motion to vacate or modify an order of
attachment the plaintiff shall have the burden of establishing the grounds for the attachment, the
need for continuing the levy and the probability that he will succeed on the merits.” Id.
It has long been settled that an attachment cannot be sustained unless the papers upon
which it was granted show by competent evidence the facts required, and mere conclusions of
belief, not founded on facts thus shown, are of no avail. Rallings v McDonald, 76 A.D. 112 (1st
Dept. 1902). This is so because pre-judgment attachment runs counter to the fundamental
common-law concept that, before depriving party of his property, opportunity for hearing should
be offered. Interpetrol Bermuda, Ltd. v Trinidad & Tobago Oil Co., 135 Misc. 2d 160, 513
N.Y.S.2d 598, 1987 N.Y. Misc. LEXIS 2194 (N.Y. Sup. Ct. 1987). Indeed, even if plaintiff
satisfies all of the statutory requirements for an order of attachment, the issuance of relief
remains in the discretion of the trial court, because attachment is recognized to be a harsh and
extraordinary remedy. JSC Foreign Econ. Ass'n Technostroyexport v Int'l Dev. & Trade Servs.,
306 F. Supp. 2d 482 (S.D.N.Y. 2004).
There is a treasured quote in legal circles attributed to Carl Sandburg:
“If the facts are against you, argue the law. If the law is against you, argue the facts. If the law
and the facts are against you, pound the table and yell like hell.” In the instant case, Plaintiff now
seeks to sustain the “harsh and extraordinary” remedy of pre-judgment attachment with little
more than a half-signed contract, limited financial statements, and a whole lot of table pounding.
3
3 of 4
FILED: NEW YORK COUNTY CLERK 02/11/2023 04:42 PM INDEX NO. 654412/2022
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/11/2023
Yet the narrow issue before this Court is whether the Plaintiff has met the high bar of
demonstrating Defendants have evinced an actual intent to frustrate a possible judgment—with
proof so convincing that virtually all their assets should be frozen, and their ability to litigate
and/or settle this matter should be severely hindered. Justice demands that this Court ignore the
noise, consider the circumstances under which the original attachment motion was granted, and
vacate the December 22, 2022 Order.
WHEREFORE, your Affirmant respectfully requests that the Court issue an Order: 1)
pursuant to CPLR §6223, vacating the Court’s December 22, 2022 Order of Attachment,
Temporary Restraining Order, and Preliminary Injunctive Relief; and 2) for such other and
further relief as this Court may deem just and proper.
Dated: New York, New York
February 11, 2023
Respectfully Submitted By:
____________/s__________
Jeffrey Chabrowe, Esq.
Law Office of Jeffery Chabrowe, P.C.
Attorney(s) for the Defendants
521 5th Avenue, 17th FL
New York, New York 10017
T: (917) 529-3921
E: Jeff@chabrowe.com
TO: VIA NYSCEF
Morrison Cohen, LLP
Gayle Pollack
Collin A. Rose
Attorney(s) for Plaintiff
909 Third Avenue
New York, NY 10022
(212) 735-8600
4
4 of 4
Preview
FILED: NEW YORK COUNTY CLERK 02/11/2023 04:42 PM INDEX NO. 654412/2022 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/11/2023 SUPREME COURT FOR THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X ABNB INVESTMENT LLC,, Index No.: 654412/2022 Plaintiff, AFFIRMATION -against- IN REPLY MICHAEL MANN, MANN CAPITAL GROUP, LLC and MCGI GROUP LLC, Defendants. ----------------------------------------------------------------------X JEFFREY CHABROWE, ESQ., an attorney duly admitted to practice law by and before the courts of the State of New York, affirms the following to be true under penalty of perjury: I am associated with the Law Office of Jeffery Chabrowe, P.C., attorney(s) for the Defendants, MICHAEL MANN, MANN CAPITAL GROUP, LLC and MCGI GROUP LLC. As such, I am fully familiar with the facts and circumstances heretofore and herein by virtue of my review of the file maintained by my office. I submit this Affirmation in Reply, in further support of Defendants’ request that the Court issue an Order: 1) pursuant to CPLR §6223, vacating the Court’s December 22, 2022 Order of Attachment, Temporary Restraining Order, and Preliminary Injunctive Relief; and 2) for such other and further relief as this Court may deem just and proper. PRELIMINARY STATEMENT Plaintiff’s Opposition falls well short of the requisite evidentiary showing to sustain the “harsh and extraordinary”1 remedy of pre-judgment attachment. Plaintiff sheds considerable ink 1 JSC Foreign Econ. Ass'n Technostroyexport v Int'l Dev. & Trade Servs., 306 F. Supp. 2d 482, (S.D.N.Y. 2004). 1 1 of 4 FILED: NEW YORK COUNTY CLERK 02/11/2023 04:42 PM INDEX NO. 654412/2022 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/11/2023 stridently parroting the allegations of the complaint, supplemented only by cherry-picked bank statements and irrelevant email exchanges. Yet Plaintiff’s high burden was to provide evidentiary facts evincing an actual intent to frustrate Plaintiff’s ability to collect on a judgment,2 and nothing about this litigation suggests such an intent. The Defendants are here, represented by counsel. They have not skipped town, closed bank accounts, or become unreachable. To the contrary, they have answered the complaint, filed the instant motion, and produced responses to Plaintiff’s considerable document demands.3 As Plaintiff now concedes, they also asked Plaintiff’s counsel to agree to a brief adjournment of the December 22, 2022, court date which led to the present attachment being granted as “unopposed.” Nevertheless, Plaintiff fights to maintain the pre-judgment attachment for virtually any assets or real property which the Defendants may own (NYSCEF No. 21), despite there being no legal basis for such an extreme remedy. Furthermore, as Plaintiff well knows, the existing attachment has never been “unopposed” by Defendants, Plaintiff’s rich allegations of defense counsel’s “gamesmanship” notwithstanding. Accordingly, justice demands that the Court’s December 22, 2022, Order be vacated. Plaintiff’s Case for Attachment Remains Speculative, Strained, and Conclusory Plaintiff’s original case for attachment was supported only by an unsigned investor’s agreement, and two financial statements, one purported to be fabricated and the other purported to be authentic ((NYSCEF Nos. 2-4). Plaintiff’s present case adds some T.D. Bank statements to the mix that Plaintiff speculates may “suggest,” Defendants will intentionally seek to frustrate Plaintiff’s ability to collect on a judgment. Perhaps aware of the baseless and conjectural nature 2 See, e.g.., Maitrejean v Levon Properties Corp., 45 A.D.2d 1020 (N.Y. App. Div. 2d Dep't 1974). 3 Defendants’ responses were served February 8, 2023. 2 2 of 4 FILED: NEW YORK COUNTY CLERK 02/11/2023 04:42 PM INDEX NO. 654412/2022 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/11/2023 of this, Plaintiff seeks to shift the burden to Defendants, denouncing their failure to provide an “affidavit” setting forth their side of the case (Plaintiff’s Opp. p. 2). But the law is clear: under CPLR § 6212, the burden is on the party seeking attachment to establish grounds for it. Asdourian v. Konstantin, 50 F. Supp. 2d 152, 1999 U.S. Dist. LEXIS 7585 (E.D.N.Y. 1999). CPLR §6223 makes equally plain that “Upon a motion to vacate or modify an order of attachment the plaintiff shall have the burden of establishing the grounds for the attachment, the need for continuing the levy and the probability that he will succeed on the merits.” Id. It has long been settled that an attachment cannot be sustained unless the papers upon which it was granted show by competent evidence the facts required, and mere conclusions of belief, not founded on facts thus shown, are of no avail. Rallings v McDonald, 76 A.D. 112 (1st Dept. 1902). This is so because pre-judgment attachment runs counter to the fundamental common-law concept that, before depriving party of his property, opportunity for hearing should be offered. Interpetrol Bermuda, Ltd. v Trinidad & Tobago Oil Co., 135 Misc. 2d 160, 513 N.Y.S.2d 598, 1987 N.Y. Misc. LEXIS 2194 (N.Y. Sup. Ct. 1987). Indeed, even if plaintiff satisfies all of the statutory requirements for an order of attachment, the issuance of relief remains in the discretion of the trial court, because attachment is recognized to be a harsh and extraordinary remedy. JSC Foreign Econ. Ass'n Technostroyexport v Int'l Dev. & Trade Servs., 306 F. Supp. 2d 482 (S.D.N.Y. 2004). There is a treasured quote in legal circles attributed to Carl Sandburg: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” In the instant case, Plaintiff now seeks to sustain the “harsh and extraordinary” remedy of pre-judgment attachment with little more than a half-signed contract, limited financial statements, and a whole lot of table pounding. 3 3 of 4 FILED: NEW YORK COUNTY CLERK 02/11/2023 04:42 PM INDEX NO. 654412/2022 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/11/2023 Yet the narrow issue before this Court is whether the Plaintiff has met the high bar of demonstrating Defendants have evinced an actual intent to frustrate a possible judgment—with proof so convincing that virtually all their assets should be frozen, and their ability to litigate and/or settle this matter should be severely hindered. Justice demands that this Court ignore the noise, consider the circumstances under which the original attachment motion was granted, and vacate the December 22, 2022 Order. WHEREFORE, your Affirmant respectfully requests that the Court issue an Order: 1) pursuant to CPLR §6223, vacating the Court’s December 22, 2022 Order of Attachment, Temporary Restraining Order, and Preliminary Injunctive Relief; and 2) for such other and further relief as this Court may deem just and proper. Dated: New York, New York February 11, 2023 Respectfully Submitted By: ____________/s__________ Jeffrey Chabrowe, Esq. Law Office of Jeffery Chabrowe, P.C. Attorney(s) for the Defendants 521 5th Avenue, 17th FL New York, New York 10017 T: (917) 529-3921 E: Jeff@chabrowe.com TO: VIA NYSCEF Morrison Cohen, LLP Gayle Pollack Collin A. Rose Attorney(s) for Plaintiff 909 Third Avenue New York, NY 10022 (212) 735-8600 4 4 of 4