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FILED: NASSAU COUNTY CLERK 05/04/2023 03:59 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 05/04/2023
EXHIBIT 5
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
xxxxxx xxxxxx a/k/a xxxxxxxxxx xxxxxx,
individually and derivatively on behalf of Index No. 607197/2022
ROCKVILLE CORP.,
Plaintiff, Motion Seq. No. 003
-against-
Hon. Sharon MJ Gianelli
xxxxxxx xxxxx, individually and as the executor
of the Estate of xxxx xxxxx, and as co-trustee of the
disclaimer Trust under Article “Fourth” of the Last ORAL ARGUMENT
Will and Testament of xxxx xxxxx; MAKAN REQUESTED
DELRAHIM, as former co-trustee of the disclaimer
Trust under Article “Fourth” of the Last Will and
Testament of xxxx xxxxx; and BAHARAK
AMIRIAN as co-trustee of the disclaimer Trust under
the Last Will and Testament of xxxx xxxxx,
Defendants,
-and-
ROCKVILLE CORP.,
Nominal Defendant.
AFFIRMATION OF DAVID E. ROSS IN SUPPORT OF DEFENDANTS’
ORDER TO SHOW CAUSE TO MODIFY PRELIMINARY INJUNCTION
TO REQUIRE POSTING OF UNDERTAKING AS REQUIRED BY CPLR 6312(b)
I, David E. Ross, an attorney duly admitted to practice in the courts of the State of New
York, hereby affirm as follows under penalty of perjury:
1. I am an attorney admitted to the bar of the State of New York and a member of the
firm Kasowitz Benson Torres LLP (“Kasowitz”), attorneys for defendants xxxxxxx xxxxx, Makan
Delrahim, Baharak Amirian, and nominal defendant Rockville Corp. (together, “Defendants”). I
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submit this affirmation in support of Defendants’ Order to Show Cause to Modify Preliminary
Injunction to Require Posting of Undertaking as Required by CPLR 6312(b).
2. Attached hereto as Exhibit A is a true and correct copy of this Court’s Order
granting Plaintiff’s motion for preliminary injunction and denying Defendants’ motion to dismiss,
dated September 27, 2022, and entered October 3, 2022.
3. No prior application has been made for the relief requested herein.
Dated: New York, New York
October 11, 2022
/s/ David E. Ross
David E. Ross
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CERTIFICATE OF COMPLIANCE
This affirmation complies with the word count limitation of Commercial Division Rule 17
because it contains 144 words, exclusive of the caption and signature block.
/s/ David E. Ross
David E. Ross
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EXHIBIT A
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
X
xxxxxx xxxxxx a/k/a xxxxxxxxxx
xxxxxx, individually and derivatively on Index No.: 607197/2022
behalf of ROCKVILLE CORP.,
Plaintiff,
NOTICE OF ENTRY
-against-
xxxxxxx xxxxx, individually and as the
executor of the Estate of xxxx xxxxx, and as co-
trustee of the disclaimer Trust under Article
"Fourth" of the Last Will and Testament of
xxxx xxxxx; MAKAN DELRAHIM, as former
co-trustee of the disclaimer Trust under Article
"Fourth" of the Last Will and Testament of
xxxx xxxxx; and BAHARAK AMIRIAN as co-
trustee of the disclaimer Trust under the Last
Will and Testament of xxxx xxxxx,
Defendants,
-and-
ROCKVILLE CORP.
Nominal Defendant.
PLEASE TAKE NOTICE that the annexed is a true and accurate copy
of the Decision and Order on Motion of the Honorable Sharon M.J. Gianelli, Supreme
Court of the State of New York, County of New York dated September 27, 2022,
entered in the Office of the Clerk of that Court on October 3, 2022.
Dated: Uniondale, New York
September 30, 2022
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RUSKIN MOSCOU FALTISCHEK, P.C.
By: /s/ Daniel E. Shapiro
DANIEL E. SHAPIRO, ESQ.
Attorney for Plaintiff
1425 RXR Plaza
East Tower, 15th Floor
Uniondale, New York 11556
(516) 663-6600
dshapiro@rmfpc.com
TO: KASOWITZ BENSQN TORRES LLP (by NYSCEF)
MICHAEL S. BECK
DAVID E. ROSS
Attorney for Defendants
1633 Broadway
New York, NY 10019
(212) 506-1700
mbeckAkasowitz.com
dross@kasowitz.com
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU — Commercial I)iv€sion Part 8.
Present: Hon. Sharon M.J. Gianel.li
X
xxxxxx xxxxxx. a/k/a xxxxxxxxxx
xxxxxx, individually and derivatively on behalf
Of ROCKVILLE CORP., Index No: 607197/2022
Plaintiff, Motion Seq. OO1 and OO2
-against-
Decision and Order
xxxxxxx xxxxx, individually.and as the executor
of the Estate of xxxx. Sa.kni„ and as co-trustee of the
disclaimer Trust under Article "Fourth" of the Last
Will and Testament of xxxx xxxxx; MAKAN DELRAHIM,
as former co-trustee of the disclaimer Trust under
Article "Fourth" of the Last Will and Testament of
xxxx xxxxx; and BABARAK AMIR.IAN as co-trustee
of the disclaimer Trust under the Last Will and
Testament of xxxx xxxxx,
Defendants.
Papers submitted on this motion:
Plaintiffs Order to Show Cause, Affidavit, Affirmation,
Memo of Law and Exhibits in Support —____X.
Defendants' Notice of Cross-Motion,
Memorandum of Law, Affirmation, Affidavit and.
Exhibits in Support and in Opposition X
Plaintiffs Affidavit, Memorandum of Law and
Exhibits in Opposition and in Support X
Plaintiff moves for an Order granting preliminary injunctive relief enjoining and
restraining Defendants, during the pendency of this action, from (i.) transferring,
pledging, encumbering, conveying, assigning, selling, altering, marketing and/or listing
for sale, modifying, destroying, hypothecating, financing and/or otherwise disposing of
the property located at 172 Sunrise Highway, Rockville Center, New York (the "Property"),
without the express written consent of Plaintiff; and (ii) taking any steps and/or
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undertaking any actions in furtherance of transferring, pledging, encumbering, conveying,
assigning, selling, altering, marketing and/or listing for sale, modifying, destroying,
hypothecating, financing and/or otherwise disposing of the Property without the express
written consent of Plaintiff.
Defendants cross move the Court for an Order pursuant to CPLR -§3211(a)(1), (a)(5),
(a)(7) and (a)(8) dismissing the Complaint in its entirety.
This action arises out of allegations of Breach of Fiduciary Duty, derivatively on behalf
of Rockville Corp., Constructive Trust, and an application for a permanent injunction
enjoining and restraining Defendants from (1) transferring, pledging, encumbering,
conveying, assigning, selling, altering,. marketing and/or listing f0r sale, modifying,
destroying, hypothecating„ financing and/or otherwise disposing of the Property without
the express written consent of Plaintiff; and (ii) taking any steps and/or undertaking any
actions in thrtherance of transferring, .pledging, encumbering, conveying, assigning,
selling, altering, marketing and/or listing for sale, modifying, destroying, hypothecating,
financing and/or otherwise disposing of the Property without the express written
consent of Plaintiff.
This action was commenced by the filing o a Summons and Complaint on June O2,
2022.
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Oral argument was heard on this matter on June 16, 2O22. The Court is also in receipt
of post-submission correspondence filed by the parties on June 27, 2O22 and June 2S,
2O22.
FactTlal History
In 1996, Plaintiff xxxxxx emigrated to the United States from Iran. At that time, Plaintiff
xxxxxx's deceased brother, xxxx xxxxx ("xxxx"), had been living in the United States
for over 1O years. Plaintiff xxxxxx and xxxx subsequently created a corporation named
Rockville Corp. (the "Corporation"), purchased a property located at '172 Sunrise
Highway, Rockville. Centre, New York (the "Property") and opened, on that Property,
Bargain Liquor Store (the "Store"). On December 15, 2OOO, the Corporation purchased
an adjoining lot ("Lot 359").
Plaintiff xxxxxx alleges that, due to a lack of credit, he was unable to obtain a mortgage or
loan on his own. Plaintiff xxxxxx states that he and xxxx agreed to the creation of a
corporation for the purpose of buying property and starting a business. Plaintiff xxxxxx
further states that it was further agreed that ownership of the Corporation would be
allocated So% to him and 2O% to xxxx. He further alleges that it was understood and
agreed between them that Plaintiff xxxxxx would be responsible for running and
overseeing all the day-to-day operations of the Corporation and the Store, and that
Plaintiff xxxxxx would handle the businesses' finances, manage the employees, and
oversee all aspects of the operation.
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Plaintiff xxxxxx states that xxxx was to serve as a passive minority shareholder whose
sole responsibility was to facilitate the procurement of any financing that the Corporation
or the Store required to fund their operations.
Plaintiff xxxxxx also states that it was separately understood that xxxx would use any
profit distributions he received from the Corporation to cover certain categories of
expenses incurred by their parents, who at that time, were still living in Iran.
Plaintiff xxxxxx alleges that he has personally paid all the costs associated with the
maintenance of the Property and the Store including $65,000.00 as the down payment
for the Property, $1,380.00 to the New York State Liquor Authority for a liquor license,
and the monthly mortgage payments for the Property and Lot 359, until both properties
were free and clear of liens and mortgages.
Plaintiff xxxxxx argues that xxxx did not contribute any personal funds toward the
Property or the Store, but that he did sign all the mortgage documents for the purchase
of the Property and. Lot 359.
On March 1O, 2008, xxxx xxxxx passed away, leaving a Last Will and Testament
naming his w€fe, Defendant xxxxxxx xxxxx as Executor, and naming Defendant Katbrin
xxxxx and her brother Defendant Makan Deirahim co-trustees of the disclaimer trust
under article "Fourth" of the Last Will and Testament of xxxx xxxxx, Defendant
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Delrahim subsequently resigned as co-truStee and was replaced by Defendant .Baharak
Amirian.
On May 17, 2010, Plaintiff xxxxxx, on behalf of the Corporation, purchased an additional
property ("Lot 369") for $25,OOO.OO from the Incorporated Village of Rockville Center.
Plaintiff xxxxxx, signed the purchase documents and made all payments until the
property was free and clear of liens and mortgages.
In 2021, Plaintiff xxxxxx began negotiations with Dendants to purchase xxxx's 20%
ownership interest in the Corporation. Plaintiff xxxxxx argues that during these
negotiations Defendants, without the knowledge or consent of Plaintiff, engaged a
broker to sell the assets of the Corporation.
At this time, Plaintiff seeks an Order enjoining and restraining Defendants, during the
pendency of this action, from (i) transferring, pledging, encumbering, conveying,
assigning, selling, altering, marketing and/or listing for sale„ modifying, destroying,
hypothecating, financing and/or otherwise disposing of the property located at 172
Sunrise Highway, Rockville Center, New York (the "Property"), without the express
written consent of .Plaintiff; and (ii) taking any steps and/or undertaking any actions in
furtherance of transferring, pledging, encumbering, conveying, assigning, selling,
altering, marketing and/or listing for sale„ modifying, destroying, hypothecating,
financing and/or otherWise disposing of the Property without the express written
consent of Plaintiff.
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Defendants have cross-moved the Court, for an Order to dismiss the.Com plaint in its
entirety.
Defendants argue that all documentary evidence conclusively establishes that xxxx
owned l00% of the Corporation, and that the t00% ownership interest passed to
Defendant xxxxx upon xxxx's death. Defendants argue that corporate filings, estate
filings, K-i's and other documentary evidence establish that Plaintiff has no ownership
interest in the Corporation.
Defendants further argue that xxxx and Defendant xxxxx have filed tax returns for the
Corporation, and have paid ineome taxes on the Corporation's earnings.
Defendants argue that there is no basis for a Preliminary injunction as Plaintiff cannot
demonstrate a likelihood of success or irreparable harm. Defendants argue that the
equities are in Defendant xxxxxxx Salmi's favor.
Defendants further argue that dismissal of the complaint, in its entirety, is appropriate
at this time.
In further support of the motion for preliminary injunction, and in opposition to
Defendants' motion to dismiss, Plaintiff argues that the Corporation's 25-year history of
business dealings cannot he disregarded. Further, Plaintiff argues that the evidence
submitted establishes that Plaintiff is the only party who has ever contributed his own.
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personal capital to Rockville Corp. or the Property, which is the Corporation's sole
asset.. Further, Plaintiff argues that he has been responsible for making and funding the
mortgage payments, real estate tax payments, insurance payments and grieving :County
tax assessments on behalf of the Corporation.
Further, Plaintiff argues that the tax filings, K-i's and mortgage documents authored by
xxxx during his lifetime are not dispositive of ownership status in the Corporation.
Plaintiff states that a Preliminary injunction should be granted in this matter as Plaintiff
is likely to succeed on the merits, that Plaintiff will suffer irreparable harm in the
absence of an injunction, and that the balance of equities favors Plaintiff.
Plaintiff also argues that dismissal of the Complaint is inappropriate in this matter.
Additional caselaw and arguments were presented by both sides after oral argument and
the submission of both motions.
Analysis
CPLR § 6301 states:
A preliminary injunction may be granted in any action where it appears
that the defendant threatens or is about to do, or is doing or procuring or
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suffering to be done, an act in violation of the plaintiffs rights respecting
the subject of the action, and tending to render• the judgment ineffectual,
or in any action where the plaintiff has demanded and would be entitled
to a judgment restraining the defendant from the commission or
continuance of an act, which, if committed or continued during the
pendency of the action, would produce injury to the plaintiff. A
temporary restraining order may be granted pending a hearing for a
preliminary injunction where it appears that immediate and irreparable
injury, loss or damage will result unless the defendant is restrained before
the hearing can be had.
The party seeking a preliminary injunction has the burden of showing the likelihood of
success on the merits of the claim; irreparable injury absent such relief; and a balancing
of the equities in that party's favor. See Kelley v. Garuda, 36 A.D.3d 593 [2d Dept.
20071. The decision whether to grant a preliminary, injunction rests in the sound
discretion of the Supreme Court. Doe v, Axelrodi, 73 NY2d 748,750 [19881, Automated
Waste Disposal, Inc. v. Mid-Hudson Waste, Inc., 50 AD3d 1073 [2dDept2008]; City of
Long Beach u. Sterling American Capital, LLC, 40 AD3d 902, 903 [2d Dept 20071; Ruiz
v. Meloney, 26 A.D3d 485 [2d Dept 2OO6]).
After careful consideration of the papers submitted and the arguments presented, the
Court finds that that the grant of a preliminary Injunction in this matter is appropriate.
In considering a motion to dismiss a complaint pursuant to CNA §3211, the Court must
accept the €acts as alleged in the complaint as true, accord plaintiffs the benefit of every
possible favorable inference, and determine only whether the facts as alleged fit within
any cognizable legal theOry. See Leon v. Martinez, 84 NY2d. 83, 88' [1,9941; Gervini v.
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Zanoni, 95 A. D.3d 919 [2d Dept. 2012]; Sokol v. Leader, 74 A.D.3d 118o, 1181 [2d Dept.
2O1O1. The evidence should be construed in a light most favorable to the party moved
against. Corvino v. Mount Pleasant Gent. Sch. Dist., 305 A.D.2d 364 l2d Dept. 2003];
Weiss v. Garfield, 21 A.D.2d 156 [3d Dept. 1964]. It is a drastic remedy, the procedural
equivalent of a trial, and will not be granted if there is any doubt as to the existence of a
triable issue. See Palacino v. Equity Mgt. Group, 272 A.D.2d: 4571:2d Dept. 2000];
Crowley's Milk Co. v. Klein, 24 A.D.2d 920 [3d Dept. 1965]; Moskowitz v. Garlock, 23
A.D.2d 943 [3d Dept. 1965].
Here, construing the evidence in a light most favorable to Plaintiff, the Court finds
dismissal is not appropriate at this time.
Accordingly,
It is
ORDERED, that Plaintiffs motion for an Order granting temporary and preliminary
injunctive relief enjoining and restraining Defendants, during the pendency of this
action, from transferring, pledging, encumbering, conveying, assigning, selling, altering,
marketing and/or listing for sale, modifying, destroying, hypothecating, financing
and/or otherwise disposing of the property located at 172 Sunrise Highway, .Rockville
Center, New York (the "Property"), without the express written consent of Plaintiff, is
Granted; and
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It is
ORDERED, that Defendants' motion for an Order pursuant to CPLR §3211(a)(1), (a)(5),
(a)(7) and (0(8) dismissing the Complaint in its entirety, is Denied.
All applications not specifically addressed herein are denied.
This constitutes the Decision and Order of the Court.
DATED: Mineola, New York
September 27, 2O22
haron M.J 3 ane
Just ce of the S itreme Court
ENTERED
Oct 03 2022
NASSAU COUNTY
COUNTY CLERK'S OFFICE
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FILED: NASSAU COUNTY CLERK 05/04/2023 03:59 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 05/04/2023 EXHIBIT 5 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 66 RECEIVED NYSCEF: 05/04/2023 10/11/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU xxxxxx xxxxxx a/k/a xxxxxxxxxx xxxxxx, individually and derivatively on behalf of Index No. 607197/2022 ROCKVILLE CORP., Plaintiff, Motion Seq. No. 003 -against- Hon. Sharon MJ Gianelli xxxxxxx xxxxx, individually and as the executor of the Estate of xxxx xxxxx, and as co-trustee of the disclaimer Trust under Article “Fourth” of the Last ORAL ARGUMENT Will and Testament of xxxx xxxxx; MAKAN REQUESTED DELRAHIM, as former co-trustee of the disclaimer Trust under Article “Fourth” of the Last Will and Testament of xxxx xxxxx; and BAHARAK AMIRIAN as co-trustee of the disclaimer Trust under the Last Will and Testament of xxxx xxxxx, Defendants, -and- ROCKVILLE CORP., Nominal Defendant. AFFIRMATION OF DAVID E. ROSS IN SUPPORT OF DEFENDANTS’ ORDER TO SHOW CAUSE TO MODIFY PRELIMINARY INJUNCTION TO REQUIRE POSTING OF UNDERTAKING AS REQUIRED BY CPLR 6312(b) I, David E. Ross, an attorney duly admitted to practice in the courts of the State of New York, hereby affirm as follows under penalty of perjury: 1. I am an attorney admitted to the bar of the State of New York and a member of the firm Kasowitz Benson Torres LLP (“Kasowitz”), attorneys for defendants xxxxxxx xxxxx, Makan Delrahim, Baharak Amirian, and nominal defendant Rockville Corp. (together, “Defendants”). I 1 of 3 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 66 RECEIVED NYSCEF: 05/04/2023 10/11/2022 submit this affirmation in support of Defendants’ Order to Show Cause to Modify Preliminary Injunction to Require Posting of Undertaking as Required by CPLR 6312(b). 2. Attached hereto as Exhibit A is a true and correct copy of this Court’s Order granting Plaintiff’s motion for preliminary injunction and denying Defendants’ motion to dismiss, dated September 27, 2022, and entered October 3, 2022. 3. No prior application has been made for the relief requested herein. Dated: New York, New York October 11, 2022 /s/ David E. Ross David E. Ross 2 2 of 3 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 66 RECEIVED NYSCEF: 05/04/2023 10/11/2022 CERTIFICATE OF COMPLIANCE This affirmation complies with the word count limitation of Commercial Division Rule 17 because it contains 144 words, exclusive of the caption and signature block. /s/ David E. Ross David E. Ross 3 3 of 3 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 EXHIBIT A FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU X xxxxxx xxxxxx a/k/a xxxxxxxxxx xxxxxx, individually and derivatively on Index No.: 607197/2022 behalf of ROCKVILLE CORP., Plaintiff, NOTICE OF ENTRY -against- xxxxxxx xxxxx, individually and as the executor of the Estate of xxxx xxxxx, and as co- trustee of the disclaimer Trust under Article "Fourth" of the Last Will and Testament of xxxx xxxxx; MAKAN DELRAHIM, as former co-trustee of the disclaimer Trust under Article "Fourth" of the Last Will and Testament of xxxx xxxxx; and BAHARAK AMIRIAN as co- trustee of the disclaimer Trust under the Last Will and Testament of xxxx xxxxx, Defendants, -and- ROCKVILLE CORP. Nominal Defendant. PLEASE TAKE NOTICE that the annexed is a true and accurate copy of the Decision and Order on Motion of the Honorable Sharon M.J. Gianelli, Supreme Court of the State of New York, County of New York dated September 27, 2022, entered in the Office of the Clerk of that Court on October 3, 2022. Dated: Uniondale, New York September 30, 2022 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 RUSKIN MOSCOU FALTISCHEK, P.C. By: /s/ Daniel E. Shapiro DANIEL E. SHAPIRO, ESQ. Attorney for Plaintiff 1425 RXR Plaza East Tower, 15th Floor Uniondale, New York 11556 (516) 663-6600 dshapiro@rmfpc.com TO: KASOWITZ BENSQN TORRES LLP (by NYSCEF) MICHAEL S. BECK DAVID E. ROSS Attorney for Defendants 1633 Broadway New York, NY 10019 (212) 506-1700 mbeckAkasowitz.com dross@kasowitz.com FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 FILED: NASSAU COUNTY CLERK 10/03/2022 01:26 PM) INDEX NO. 607197/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 09/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU — Commercial I)iv€sion Part 8. Present: Hon. Sharon M.J. Gianel.li X xxxxxx xxxxxx. a/k/a xxxxxxxxxx xxxxxx, individually and derivatively on behalf Of ROCKVILLE CORP., Index No: 607197/2022 Plaintiff, Motion Seq. OO1 and OO2 -against- Decision and Order xxxxxxx xxxxx, individually.and as the executor of the Estate of xxxx. Sa.kni„ and as co-trustee of the disclaimer Trust under Article "Fourth" of the Last Will and Testament of xxxx xxxxx; MAKAN DELRAHIM, as former co-trustee of the disclaimer Trust under Article "Fourth" of the Last Will and Testament of xxxx xxxxx; and BABARAK AMIR.IAN as co-trustee of the disclaimer Trust under the Last Will and Testament of xxxx xxxxx, Defendants. Papers submitted on this motion: Plaintiffs Order to Show Cause, Affidavit, Affirmation, Memo of Law and Exhibits in Support —____X. Defendants' Notice of Cross-Motion, Memorandum of Law, Affirmation, Affidavit and. Exhibits in Support and in Opposition X Plaintiffs Affidavit, Memorandum of Law and Exhibits in Opposition and in Support X Plaintiff moves for an Order granting preliminary injunctive relief enjoining and restraining Defendants, during the pendency of this action, from (i.) transferring, pledging, encumbering, conveying, assigning, selling, altering, marketing and/or listing for sale, modifying, destroying, hypothecating, financing and/or otherwise disposing of the property located at 172 Sunrise Highway, Rockville Center, New York (the "Property"), without the express written consent of Plaintiff; and (ii) taking any steps and/or 1 1 of 10 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 FILED: NASSAU COUNTY CLERK 10/03/2022 01:26 PM) INDEX NO. 607197/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 09/27/2022 undertaking any actions in furtherance of transferring, pledging, encumbering, conveying, assigning, selling, altering, marketing and/or listing for sale, modifying, destroying, hypothecating, financing and/or otherwise disposing of the Property without the express written consent of Plaintiff. Defendants cross move the Court for an Order pursuant to CPLR -§3211(a)(1), (a)(5), (a)(7) and (a)(8) dismissing the Complaint in its entirety. This action arises out of allegations of Breach of Fiduciary Duty, derivatively on behalf of Rockville Corp., Constructive Trust, and an application for a permanent injunction enjoining and restraining Defendants from (1) transferring, pledging, encumbering, conveying, assigning, selling, altering,. marketing and/or listing f0r sale, modifying, destroying, hypothecating„ financing and/or otherwise disposing of the Property without the express written consent of Plaintiff; and (ii) taking any steps and/or undertaking any actions in thrtherance of transferring, .pledging, encumbering, conveying, assigning, selling, altering, marketing and/or listing for sale, modifying, destroying, hypothecating, financing and/or otherwise disposing of the Property without the express written consent of Plaintiff. This action was commenced by the filing o a Summons and Complaint on June O2, 2022. 2 2 of 10 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 FILED: NASSAU COUNTY CLERK 10/03/2022 01:26 R4 INDEX NO. 607197/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 09/27/2022 Oral argument was heard on this matter on June 16, 2O22. The Court is also in receipt of post-submission correspondence filed by the parties on June 27, 2O22 and June 2S, 2O22. FactTlal History In 1996, Plaintiff xxxxxx emigrated to the United States from Iran. At that time, Plaintiff xxxxxx's deceased brother, xxxx xxxxx ("xxxx"), had been living in the United States for over 1O years. Plaintiff xxxxxx and xxxx subsequently created a corporation named Rockville Corp. (the "Corporation"), purchased a property located at '172 Sunrise Highway, Rockville. Centre, New York (the "Property") and opened, on that Property, Bargain Liquor Store (the "Store"). On December 15, 2OOO, the Corporation purchased an adjoining lot ("Lot 359"). Plaintiff xxxxxx alleges that, due to a lack of credit, he was unable to obtain a mortgage or loan on his own. Plaintiff xxxxxx states that he and xxxx agreed to the creation of a corporation for the purpose of buying property and starting a business. Plaintiff xxxxxx further states that it was further agreed that ownership of the Corporation would be allocated So% to him and 2O% to xxxx. He further alleges that it was understood and agreed between them that Plaintiff xxxxxx would be responsible for running and overseeing all the day-to-day operations of the Corporation and the Store, and that Plaintiff xxxxxx would handle the businesses' finances, manage the employees, and oversee all aspects of the operation. 3 3 of 10 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 FILED: NASSAU COUNTY CLERK 10/03/2022 01:26 PM) INDEX NO. 607197/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 09/27/2022 Plaintiff xxxxxx states that xxxx was to serve as a passive minority shareholder whose sole responsibility was to facilitate the procurement of any financing that the Corporation or the Store required to fund their operations. Plaintiff xxxxxx also states that it was separately understood that xxxx would use any profit distributions he received from the Corporation to cover certain categories of expenses incurred by their parents, who at that time, were still living in Iran. Plaintiff xxxxxx alleges that he has personally paid all the costs associated with the maintenance of the Property and the Store including $65,000.00 as the down payment for the Property, $1,380.00 to the New York State Liquor Authority for a liquor license, and the monthly mortgage payments for the Property and Lot 359, until both properties were free and clear of liens and mortgages. Plaintiff xxxxxx argues that xxxx did not contribute any personal funds toward the Property or the Store, but that he did sign all the mortgage documents for the purchase of the Property and. Lot 359. On March 1O, 2008, xxxx xxxxx passed away, leaving a Last Will and Testament naming his w€fe, Defendant xxxxxxx xxxxx as Executor, and naming Defendant Katbrin xxxxx and her brother Defendant Makan Deirahim co-trustees of the disclaimer trust under article "Fourth" of the Last Will and Testament of xxxx xxxxx, Defendant 4 4 of 10 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 FILED: NASSAU COUNTY CLERK 10/03/2022 01:26 PM) INDEX NO. 607197/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 09/27/2022 Delrahim subsequently resigned as co-truStee and was replaced by Defendant .Baharak Amirian. On May 17, 2010, Plaintiff xxxxxx, on behalf of the Corporation, purchased an additional property ("Lot 369") for $25,OOO.OO from the Incorporated Village of Rockville Center. Plaintiff xxxxxx, signed the purchase documents and made all payments until the property was free and clear of liens and mortgages. In 2021, Plaintiff xxxxxx began negotiations with Dendants to purchase xxxx's 20% ownership interest in the Corporation. Plaintiff xxxxxx argues that during these negotiations Defendants, without the knowledge or consent of Plaintiff, engaged a broker to sell the assets of the Corporation. At this time, Plaintiff seeks an Order enjoining and restraining Defendants, during the pendency of this action, from (i) transferring, pledging, encumbering, conveying, assigning, selling, altering, marketing and/or listing for sale„ modifying, destroying, hypothecating, financing and/or otherwise disposing of the property located at 172 Sunrise Highway, Rockville Center, New York (the "Property"), without the express written consent of .Plaintiff; and (ii) taking any steps and/or undertaking any actions in furtherance of transferring, pledging, encumbering, conveying, assigning, selling, altering, marketing and/or listing for sale„ modifying, destroying, hypothecating, financing and/or otherWise disposing of the Property without the express written consent of Plaintiff. 5 5 of 10 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 FILED: NASSAU COUNTY CLERK 10/03/2022 01:26 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 09/27/2022 Defendants have cross-moved the Court, for an Order to dismiss the.Com plaint in its entirety. Defendants argue that all documentary evidence conclusively establishes that xxxx owned l00% of the Corporation, and that the t00% ownership interest passed to Defendant xxxxx upon xxxx's death. Defendants argue that corporate filings, estate filings, K-i's and other documentary evidence establish that Plaintiff has no ownership interest in the Corporation. Defendants further argue that xxxx and Defendant xxxxx have filed tax returns for the Corporation, and have paid ineome taxes on the Corporation's earnings. Defendants argue that there is no basis for a Preliminary injunction as Plaintiff cannot demonstrate a likelihood of success or irreparable harm. Defendants argue that the equities are in Defendant xxxxxxx Salmi's favor. Defendants further argue that dismissal of the complaint, in its entirety, is appropriate at this time. In further support of the motion for preliminary injunction, and in opposition to Defendants' motion to dismiss, Plaintiff argues that the Corporation's 25-year history of business dealings cannot he disregarded. Further, Plaintiff argues that the evidence submitted establishes that Plaintiff is the only party who has ever contributed his own. 6 6 of 10 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 FILED: NASSAU COUNTY CLERK 10/03/2022 01:26 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 09/27/2022 personal capital to Rockville Corp. or the Property, which is the Corporation's sole asset.. Further, Plaintiff argues that he has been responsible for making and funding the mortgage payments, real estate tax payments, insurance payments and grieving :County tax assessments on behalf of the Corporation. Further, Plaintiff argues that the tax filings, K-i's and mortgage documents authored by xxxx during his lifetime are not dispositive of ownership status in the Corporation. Plaintiff states that a Preliminary injunction should be granted in this matter as Plaintiff is likely to succeed on the merits, that Plaintiff will suffer irreparable harm in the absence of an injunction, and that the balance of equities favors Plaintiff. Plaintiff also argues that dismissal of the Complaint is inappropriate in this matter. Additional caselaw and arguments were presented by both sides after oral argument and the submission of both motions. Analysis CPLR § 6301 states: A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or 7 7 of 10 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 FILED: NASSAU COUNTY CLERK 10/03/2022 01:26 PM) INDEX NO. 607197/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 09/27/2022 suffering to be done, an act in violation of the plaintiffs rights respecting the subject of the action, and tending to render• the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had. The party seeking a preliminary injunction has the burden of showing the likelihood of success on the merits of the claim; irreparable injury absent such relief; and a balancing of the equities in that party's favor. See Kelley v. Garuda, 36 A.D.3d 593 [2d Dept. 20071. The decision whether to grant a preliminary, injunction rests in the sound discretion of the Supreme Court. Doe v, Axelrodi, 73 NY2d 748,750 [19881, Automated Waste Disposal, Inc. v. Mid-Hudson Waste, Inc., 50 AD3d 1073 [2dDept2008]; City of Long Beach u. Sterling American Capital, LLC, 40 AD3d 902, 903 [2d Dept 20071; Ruiz v. Meloney, 26 A.D3d 485 [2d Dept 2OO6]). After careful consideration of the papers submitted and the arguments presented, the Court finds that that the grant of a preliminary Injunction in this matter is appropriate. In considering a motion to dismiss a complaint pursuant to CNA §3211, the Court must accept the €acts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theOry. See Leon v. Martinez, 84 NY2d. 83, 88' [1,9941; Gervini v. 8 of 10 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 FILED: NASSAU COUNTY CLERK 10/03/2022 01:26 PM) INDEX NO. 607197/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 09/27/2022 Zanoni, 95 A. D.3d 919 [2d Dept. 2012]; Sokol v. Leader, 74 A.D.3d 118o, 1181 [2d Dept. 2O1O1. The evidence should be construed in a light most favorable to the party moved against. Corvino v. Mount Pleasant Gent. Sch. Dist., 305 A.D.2d 364 l2d Dept. 2003]; Weiss v. Garfield, 21 A.D.2d 156 [3d Dept. 1964]. It is a drastic remedy, the procedural equivalent of a trial, and will not be granted if there is any doubt as to the existence of a triable issue. See Palacino v. Equity Mgt. Group, 272 A.D.2d: 4571:2d Dept. 2000]; Crowley's Milk Co. v. Klein, 24 A.D.2d 920 [3d Dept. 1965]; Moskowitz v. Garlock, 23 A.D.2d 943 [3d Dept. 1965]. Here, construing the evidence in a light most favorable to Plaintiff, the Court finds dismissal is not appropriate at this time. Accordingly, It is ORDERED, that Plaintiffs motion for an Order granting temporary and preliminary injunctive relief enjoining and restraining Defendants, during the pendency of this action, from transferring, pledging, encumbering, conveying, assigning, selling, altering, marketing and/or listing for sale, modifying, destroying, hypothecating, financing and/or otherwise disposing of the property located at 172 Sunrise Highway, .Rockville Center, New York (the "Property"), without the express written consent of Plaintiff, is Granted; and 9 9 of 10 FILED: NASSAU COUNTY CLERK 05/04/2023 10/11/2022 03:59 10:07 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 128 67 RECEIVED NYSCEF: 05/04/2023 10/11/2022 INDEX NO. 607197/2022 FILED: NASSAU COUNTY CLERK 10/03/2022 01:26 PM) NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 09/27/2022 It is ORDERED, that Defendants' motion for an Order pursuant to CPLR §3211(a)(1), (a)(5), (a)(7) and (0(8) dismissing the Complaint in its entirety, is Denied. All applications not specifically addressed herein are denied. This constitutes the Decision and Order of the Court. DATED: Mineola, New York September 27, 2O22 haron M.J 3 ane Just ce of the S itreme Court ENTERED Oct 03 2022 NASSAU COUNTY COUNTY CLERK'S OFFICE 1O 10 of 10