Preview
INDEX NO. 607197/2022
FILED: NASSAU COUNTY CLERK 05/05/2023 12:55 PM
NYSCEF DOC. NO. 137 RECEIVED NYSCEF 05/05/2023
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 Seg. Nos. 001 & 002
-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 NOTICE OF APPEAL
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 defendants xxxxxxx xxxxx, Makan Delrahim
and Baharak
Amirian, and nominal defendant Rockville Corp. (“Defendants”) hereby appeal to the Appellate
Division of the State of New
Y ork, Second Department, all parts of the decision and order of the
Hon. Sharon MJ. Gianelli, J.S.C., dated April 4, 2023 and entered
with the County Clerk, Nassau.
County on Apmil 5, 2023 which granted Plaintiff’ s request for a preliminary injunction and denied.
Defendants’ cross-motionto dismiss.
1 of 18
INDEX NO. 607197/2022
FILED: NASSAU COUNTY CLERK 05/05/2023 12:55 PM
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 05/05/2023
Dated: New
Y ork, New York
May 5, 2023
KASOWITZ BENSON TORRES LLP
By: /s/ David E. Ross
David E. Ross
(dross@kasowitz.com)
Michael C. Pecorini
(mpecorini@kasowitz.com)
1633B:
New York, New
Y ork 10019
212-506-1700
Counsel for Defendants
TO
RUSKIN MOSCOU FALTISCHEK, P.C.
Daniel E. Shapiro (via NY SCEF)
Elizabeth S. Sy (via NY SCEF)
East Tower, 15th Floor
Uniondale, New Y ork 11556
516-663-6600
Counsel for Plaintiff
2 of 18
iD: NA AU OUN PK DM INDEX NO. 607197/2022
NYSCEF BOC. NO. 137 RECEIVED NYSCEF: 05/05/2023
Supreme Court of the State of New York
Appellate Biuision: Second Judicial Department
Informational Statement (Pursuant to 22 NYCRR 1250.3 [a]) - Civil
errs Bt cs RSTores CoymueM COTY Mes me CeRer ear AE:] Ten mone a For Court of Original Instance
STC LUom oN MAZUR UCU CMO we CR COM oLemerey Tuneee ROME SECT UNCCaNLG (Le
xxxxxx xxxxxx a/k/a xxxxxxxxxx xxxxxx, individually and derivatively
on behalf of ROCKVILLE CORP.,
Plaintiff
Date Notice of Appeal Filed
- 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 Testamentof xxxx xxxxx; MAKAN DELRAHIM, as former co-trustee of the disclaimer Trust under Article For Appellate Division
“Fourth” of the Last Will and Testamentof xxxx xxxxx; and BAHARAK AMIRIAN as co-trustee of the disclaimer Trust under the Last
Will and Testament of xxxx xxxxx, Defendants,
-a
ROCKVILLE CORP., Nominal Defendant.
eran aie ne
Civil Action 1 CPLR article 78 Proceeding | im Appeal O Transferred Proceeding
oO CPLR article 75 Arbitration C1 Special Proceeding Other C1 Original Proceedings OC CPLR Article 78
oO Habeas Corpus Proceeding C1 CPLR Article 78 C1 Executive Law § 298
CO Eminent Domain CO CPLR 5704 Review
CO Labor Law 220 or 220-b
CO Public Officers Law § 36
CO Real Property Tax Law § 1278
DE TAT YM) Mol ea QU Cerel mE OM COM ESV ucLeMOy MUG CO) Conta teemerctKeyexoyu
Comma shel sm Leta Cosd (cel UNCC AT-TULI CRON [Meron
CO) Administrative Review Business Relationships = Commercial OC Contracts
0 Declaratory Judgment OC Domestic Relations O Election Law C Estate Matters
0) Family Court UO Mortgage Foreclosure OM ellaneous O Prisoner Discipline & Parole
Real Property O Statutory O Taxation O Torts
(other than foreclosure)
Informational Statement - Civil
3 of 18
iD: PK DIV INDEX NO. 607197/2022
NA AU OUN
NYSCEF BOC. NO. 137 RECEIVED NYSCEF: 05/05/2023
EN eyel-r-1)
Paper Appealed From (Check one only): If an appeal has been taken from more than one order or
judgment by the filing of this notice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
CO Amended Decree C Determination fm Order CO Resettled Order
Co Amended Judgement O Finding O Order
& Judgment O Ruling
CO Amended Order O Interlocutory Decree O Partial Decree Oi Other (specify):
O Decision O interlocutory Judgment Ci Resettled Decree
C Decree O Judgment O Resettled Judgment
Court: Supreme Court County: Nassau
Dated: 04/04/2023 Entered: 04/05/2023
Judge (name in full): Sharon M.J. Gianelli Index No.:607197/2022
Stage: Interlocutory 01 Final O Post-Final Trial: OO Yes i No IfYes: O Jury O Non-Jury
Prior Unperfected Appeal and Related Case Information
Are any appeals arising in the same action or proceeding currently pending in the court? Hyes L] No
If Yes, please set forth the Appellate Division Case Number assigned to each such appeal.
Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other
jurisdiction, and if so, the status of the case:
olatiiir-lmacerest-te lla)
Commenced by: Oo Order to Show Cause U1 Notice of Petition L Writ of Habeas Corpus Date Filed:
Statute authorizing commencement of proceeding in the Appellate Division:
| Court: Choose Court
[aelectetel
le Mielaiiigecte mele Sera) acon Oa
County:
wi0)-1(-3)
Choose Countv
Judge (name in full): Order of Transfer Date:
ol TRS y (0-8 mela ale Ola1
Court: Choose Court County: Choose Countv
Judge (name in full): Dated:
| BTLrogola Le) ol-¥-] Pago -t-Xel ay Me) meV 9) ©) eccla(ela-Vave BS) 1 cclunt
1a mela CUTo1)
Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief
requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
This is an appeal from each and every part of the April 4, 2023 Amended Decision and Order of the
Supreme Court, Nassau County, which granted Plaintiff-Respondent's Motion for a Preliminary Injunction,
and denied Defendants-Appellants' Motion to Dismiss.
Informational Statement - Civil
4 of 18
iD: NA AU OUN PK DM INDEX NO. 607197/2022
NYSCEF BOC. NO. 137 RECEIVED NYSCEF: 05/05/2023
Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specific relief sought on appeal.
On June 2, 2022, Plaintiff-Respondent filed its Motion for Preliminary Injunction, seeking to enjoin Defendants-
Appellants from selling or otherwise attempting to sell their property located at 172 Sunrise Highway, Rockville
Centre, NY.
On June 13, 2022, Defendants-Appellants filed their Opposition to Plaintiff-Respondent's Motion for Preliminary
Injunction and in support of their Motion to Dismiss on the grounds that documentary evidence supports that
Defendants-Appellants are the 100% owner of Rockville Corporation, which owns 100% interest in the property at
issue.
The lower court erred in granting Plaintiff-Respondent's Motion for Preliminary Injunction and in denying Defendants-
Appellants' Motion to Dismiss.
Defendants-Appellants seek reversal of the Decision and Order on the grounds that the lower court, inter alia, (i)
erroneously applied, misapplied, or disregarded the law, and (ii) erroneously applied, misapplied, mischaracterized or
disregarded the facts. Any additional grounds for reversal will be set forth in Defendants-Appellants' opening brief.
NACHE}
Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an
appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this
form is to be filed for a proceeding commenced in this court, fill in only the party’s name and his, her, or its status in this
court.
No. Party Name Original Status Appellate Division Status
xxxxxx xxxxxx Plaintiff Respondent
xxxxxxx xxxxx Defendant Appellant
Makan Delrahim Defendant Appellant
Baharak Amirian Defendant Appellant
Rockville Corp. Defendant Appellant
10
11
12
13
14
15
16
17
18
19
20
Informational Statement - Civil
5 of 18
iD: NA AU OUN PK DM INDEX NO. 607197/2022
NYSCEF BOC. NO. 137 RECEIVED NYSCEF: 05/05/2023
Nila Moet}
Instructions: Il in the names of the attorneys or firms for the respective parties. If this form is to be filed with the
notice of petition or orderto show cause by which a special proceeding is to be commenced in the Appellate Division,
only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herselfor
himself, the box marked “Pro Se” must be checked and the appropriate information for that litigant must be supplied
in the spaces provided.
Attorney/Firm Name: David E. Ross, Esq. / Kasowitz Benson Torres LLP
Address: 1633 Broadway
City: New York l State: NY | Zip: 10019 | Telephone No: 212-506-1700
E-mail Address: dross@kasowitz.com
Attorney Type: m Retained [Assigned L) Government O Pro Se C1 Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above): 2-5
Attorney/Firm Name: Daniel E. Shapiro, Esq. / Ruskin Moscou Faltischek, P.C.
Address: 1425 RXR Plaza, East Tower, 15th Floor
City: Uniondale l State: NY | Zip: 11556 | Telephone No: 516-663-6600
E-mail Address: dshapiro@rmfpc.com
Attorney Type: m Retained [Assigned L) Government O Pro Se C1 Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above): 1
Attorney/Firm Name:
Address:
City: l State: | Zip: l Telephone No:
E-mail Address:
Attorney Type: Oi Retained [LO Assigned ([) Government O Pro Se C1 Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: l State: | Zip: l Telephone No:
E-mail Address:
Attorney Type: Oi Retained [LO Assigned ([) Government O Pro Se C1 Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: l State: | Zip: l Telephone No:
E-mail Address:
Attorney Type: Oi Retained [LO Assigned ([) Government O Pro Se C1 Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: l State: | Zip: | Telephone No:
E-mail Address:
Attorney Type: Oi Retained [LO Assigned ([) Government O Pro Se C1 Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Informational Statement - Civil
6 of 18
(FILED: NASSAU COUNTY CLERK 05/05/2023 04:53 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 08/05/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU ~ Cormnmmercial Division Part 7
Present: Hon. Sharon M.J. Gianelli
x
xxxxxx xxxxxx a/k/a xxxxxxxxxx
SAKENIL, individually and derivatively on behalf
Of ROCKVILLE CORP., Index No: 607197/2022
Plaintiff, Motion Seq. 001 and 02
-against-
Amended
xxxxxxx xxxxx, individually and as the executor Decision and Order
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.
—
Papers submitted on this motion:
Plaintiff's 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 —
Plaintiff's Affidavit, Memorandum of Law and
Exhibits in Opposition and in Support ween
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 Hsting
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
i
1 of 16
INDEX NO. 607197/2022
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 03/05/2023
undertaking any actions in furtherance of transferring, pledging, encumbcring, 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)(s),
(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 (3) 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; and GD 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
eonsent of Plaintiff.
This action was commenced by the filing of a Sammons and Complaint on June 62,
2022.
&@ of 16
INDEX NO. 607197/2022
NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 05/05/2023
Oral argument was heard on this matter on June 16, 2022. The Court is also in receipt
of post-submission correspondence filed by the parties on June 27, 2022 and June 28,
2022.
Factual History
In 1996, Plaintiff xxxxxx emigrated from Germany 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 10 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, 2000, 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 ofa
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 80% to him and 20% to xxxx. He further alleges that it was understood and
agreed between them that Plaintiff xxxxxx would be responsible for running and
verseeing 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 of 16
INDEX NO. 607197/2022
NYSCEP DOC. NO. 137 RECEIVED NYSCEF: 08/05/2023
Plaintiff xxxxxx states that xxxx wus 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 alse states that it was separately undersicod 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 fran.
¢
Plaintt ft ff Sakent 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 Hquor leense,
and the monthly mortgage payments for the Property and Lot 359, until both properties
were free and clear of Hens and mortgages.
Plaintiff xxxxxx argues that xxxx did not contribute any personal funds toward the
Prop ty3 or the Store, 2 but that he did sign all the murtyage documents for the purchase
of the Property and Lot 359.
On March 10, 2008, xxxx xxxxx passed away, leaving a Last Will and Testament
naming his wife, Defendant xxxxxxx Salmi as Exc tor, and naming Defendant xxxxxxx
xxxxx and her brother Defendant Makan Delrahim co-trustees of the disclaimer trust
under artic] ourth” of the Last Will and Testament of xxxx xxxxx. Defendant
aff 18
INDEX NO. 607197/2022
NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 05/05/2023
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 (Lat 369”) for $25,000.00 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 Defendants to purchase xxxx’s 20%
ownership interest in the Corporation. P! h1i aintiff 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.
Bi off18
INDEX NO. 607197/2022
NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 08/05/2023
Defendants have cross-moved the Court, for an Order to dismiss the Complaint in its
entirety.
Defendants argue that all documentary evidence conclusively establishes that xxxx
owned 100% of the Corporatian, and that the 100% ownership interest passed to
Defendant xxxxx upon xxxx’s death. Defendants argue that corporate filings, estate
filings, K-1'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 income 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 xxxxx’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 be disregarded. Further, Plaintiff argues that the evidence
submitted establishes that Plaintiff is the only party who has ever contributed his own
B off18
INDEX NO. 607197/2022
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 08/05/2023
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~1'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 daing or procuring or
B off18
INDEX NO. 607197/2022
NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 08/05/2023
suffering to be done, an act in violation of the plaintiff's 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 aet, which, if committed or continued during the
pendeney 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 likeliheod 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 uv. Garuda, 36 A.D.3d 593 {2d Dept.
2007]. The decision whether to grant a preliminary injunction rests in the sound
dis etion of the Supreme Court. Doe v. Axelrodi, 73. NY2d 748,750 [19881], Automated
Waste Disposal, Ine. v. Mid-Hudson Waste, Inc., 50 AD3d 1073 [2dDept2008}; City of
Long Beach v. Sterling American Capital, LLC, 40 AD3d 902, 903 [2d Dept 2007]; Ruiz
v. Meloney, 26 AD3d 485 (ad Dept 2006)).
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 CPLR §g2u1, the Court must
accept the facts 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 [1994]; Cervini v.
8
B of1B
(FILED: NASSAU COUNTY CLERK 05/05/2023 04:53 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 08/05/2023
Zanoni, 95 A.D.3d 919 [2d Dept. 2012]; Sokol v. Leader, 74 A.D.3d 1180, 1181 [2d Dept.
2010]. The evidence should be construed in a light most favorable to the party moved
against. Corvino v. Mount Pleasant Cent. Sch, Dist., 305 A.D.2d 364 [2d 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 Palacina v. Equity Mgt. Group, 272 A.D.2d 457 [ad 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,
itis
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
B of1B
INDEX NO. 607197/2022
NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 08/05/2023
itis
ORDERED, that, pursuant to CPLR 6312, Plaintiff is directed to post an undertaking in
the amount of $2,500,000 from a surety, which shall be an insurance company
pursuant to CPLR §2505, within twenty (20) days of the date of this Order; and
ttis
ORDERED, that the required undertaking and affidavit shall be served and filed
pursuant to CLPR §2505; and
itis
ORDERED, that Defendants’ motion for an Order pursuant to CPLR §g2una)(Q), (a}(s),
({a)(7} and (a}(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
a
April 4, 2023
faa Are
hare. anelli
Justice of the Supfeme Court
ENTERED
Apr 05 2023
NASSAU COUNTY
COUNTY CLERK'S OFFICE
i3
16 of 18
INDEX NO. 607197/2022
FILED: NASSAU COUNTY CLERK 05/05/2023 12:55 PM
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 05/05/2023
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, Hon. Sharon MJ. Gianelli
-against-
AFFIRMATION OF SERVICE
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.
I, David E. Ross, an attomey duly admittedto practice before the Courts of the State of
New Y ork, hereby affirm under penalty of perjury, pursuantto CPLR 2106, that, (1) Iam over 18
years of age, not a partyto this action, and reside in New Y ork, New York, and (2) onthis date,
May 5, 2023, as of the time of electronic filing of the below, I served a true and complete copy of
DEFENDANTS’ NOTICE OF APPEAL with supporting papers upon:
Daniel E. Shapiro, Esq.
Elizabeth S. Sy, Esq.
RUSKIN MOSCOU FALTISCHEK, P.C.
1425 RXR Plaza
East Tower, 15th Floor
Uniondale, New Y ork 11556
Counsel for Plaintiff
17 of 18
INDEX NO. 607197/2022
FILED: NASSAU COUNTY CLERK 05/05/2023 12:55 PM
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 05/05/2023
by causing the above-named persons to receive electronic notification of the filing of the above-
mentioned document at the ECF-listed email addresses.
/s/ David E. Ross
David E. Ross
18 of 18
Preview
INDEX NO. 607197/2022 FILED: NASSAU COUNTY CLERK 05/05/2023 12:55 PM NYSCEF DOC. NO. 137 RECEIVED NYSCEF 05/05/2023 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 Seg. Nos. 001 & 002 -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 NOTICE OF APPEAL 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 defendants xxxxxxx xxxxx, Makan Delrahim and Baharak Amirian, and nominal defendant Rockville Corp. (“Defendants”) hereby appeal to the Appellate Division of the State of New Y ork, Second Department, all parts of the decision and order of the Hon. Sharon MJ. Gianelli, J.S.C., dated April 4, 2023 and entered with the County Clerk, Nassau. County on Apmil 5, 2023 which granted Plaintiff’ s request for a preliminary injunction and denied. Defendants’ cross-motionto dismiss. 1 of 18 INDEX NO. 607197/2022 FILED: NASSAU COUNTY CLERK 05/05/2023 12:55 PM NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 05/05/2023 Dated: New Y ork, New York May 5, 2023 KASOWITZ BENSON TORRES LLP By: /s/ David E. Ross David E. Ross (dross@kasowitz.com) Michael C. Pecorini (mpecorini@kasowitz.com) 1633B: New York, New Y ork 10019 212-506-1700 Counsel for Defendants TO RUSKIN MOSCOU FALTISCHEK, P.C. Daniel E. Shapiro (via NY SCEF) Elizabeth S. Sy (via NY SCEF) East Tower, 15th Floor Uniondale, New Y ork 11556 516-663-6600 Counsel for Plaintiff 2 of 18 iD: NA AU OUN PK DM INDEX NO. 607197/2022 NYSCEF BOC. NO. 137 RECEIVED NYSCEF: 05/05/2023 Supreme Court of the State of New York Appellate Biuision: Second Judicial Department Informational Statement (Pursuant to 22 NYCRR 1250.3 [a]) - Civil errs Bt cs RSTores CoymueM COTY Mes me CeRer ear AE:] Ten mone a For Court of Original Instance STC LUom oN MAZUR UCU CMO we CR COM oLemerey Tuneee ROME SECT UNCCaNLG (Le xxxxxx xxxxxx a/k/a xxxxxxxxxx xxxxxx, individually and derivatively on behalf of ROCKVILLE CORP., Plaintiff Date Notice of Appeal Filed - 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 Testamentof xxxx xxxxx; MAKAN DELRAHIM, as former co-trustee of the disclaimer Trust under Article For Appellate Division “Fourth” of the Last Will and Testamentof xxxx xxxxx; and BAHARAK AMIRIAN as co-trustee of the disclaimer Trust under the Last Will and Testament of xxxx xxxxx, Defendants, -a ROCKVILLE CORP., Nominal Defendant. eran aie ne Civil Action 1 CPLR article 78 Proceeding | im Appeal O Transferred Proceeding oO CPLR article 75 Arbitration C1 Special Proceeding Other C1 Original Proceedings OC CPLR Article 78 oO Habeas Corpus Proceeding C1 CPLR Article 78 C1 Executive Law § 298 CO Eminent Domain CO CPLR 5704 Review CO Labor Law 220 or 220-b CO Public Officers Law § 36 CO Real Property Tax Law § 1278 DE TAT YM) Mol ea QU Cerel mE OM COM ESV ucLeMOy MUG CO) Conta teemerctKeyexoyu Comma shel sm Leta Cosd (cel UNCC AT-TULI CRON [Meron CO) Administrative Review Business Relationships = Commercial OC Contracts 0 Declaratory Judgment OC Domestic Relations O Election Law C Estate Matters 0) Family Court UO Mortgage Foreclosure OM ellaneous O Prisoner Discipline & Parole Real Property O Statutory O Taxation O Torts (other than foreclosure) Informational Statement - Civil 3 of 18 iD: PK DIV INDEX NO. 607197/2022 NA AU OUN NYSCEF BOC. NO. 137 RECEIVED NYSCEF: 05/05/2023 EN eyel-r-1) Paper Appealed From (Check one only): If an appeal has been taken from more than one order or judgment by the filing of this notice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. CO Amended Decree C Determination fm Order CO Resettled Order Co Amended Judgement O Finding O Order & Judgment O Ruling CO Amended Order O Interlocutory Decree O Partial Decree Oi Other (specify): O Decision O interlocutory Judgment Ci Resettled Decree C Decree O Judgment O Resettled Judgment Court: Supreme Court County: Nassau Dated: 04/04/2023 Entered: 04/05/2023 Judge (name in full): Sharon M.J. Gianelli Index No.:607197/2022 Stage: Interlocutory 01 Final O Post-Final Trial: OO Yes i No IfYes: O Jury O Non-Jury Prior Unperfected Appeal and Related Case Information Are any appeals arising in the same action or proceeding currently pending in the court? Hyes L] No If Yes, please set forth the Appellate Division Case Number assigned to each such appeal. Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other jurisdiction, and if so, the status of the case: olatiiir-lmacerest-te lla) Commenced by: Oo Order to Show Cause U1 Notice of Petition L Writ of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: | Court: Choose Court [aelectetel le Mielaiiigecte mele Sera) acon Oa County: wi0)-1(-3) Choose Countv Judge (name in full): Order of Transfer Date: ol TRS y (0-8 mela ale Ola1 Court: Choose Court County: Choose Countv Judge (name in full): Dated: | BTLrogola Le) ol-¥-] Pago -t-Xel ay Me) meV 9) ©) eccla(ela-Vave BS) 1 cclunt 1a mela CUTo1) Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. This is an appeal from each and every part of the April 4, 2023 Amended Decision and Order of the Supreme Court, Nassau County, which granted Plaintiff-Respondent's Motion for a Preliminary Injunction, and denied Defendants-Appellants' Motion to Dismiss. Informational Statement - Civil 4 of 18 iD: NA AU OUN PK DM INDEX NO. 607197/2022 NYSCEF BOC. NO. 137 RECEIVED NYSCEF: 05/05/2023 Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds for reversal, or modification to be advanced and the specific relief sought on appeal. On June 2, 2022, Plaintiff-Respondent filed its Motion for Preliminary Injunction, seeking to enjoin Defendants- Appellants from selling or otherwise attempting to sell their property located at 172 Sunrise Highway, Rockville Centre, NY. On June 13, 2022, Defendants-Appellants filed their Opposition to Plaintiff-Respondent's Motion for Preliminary Injunction and in support of their Motion to Dismiss on the grounds that documentary evidence supports that Defendants-Appellants are the 100% owner of Rockville Corporation, which owns 100% interest in the property at issue. The lower court erred in granting Plaintiff-Respondent's Motion for Preliminary Injunction and in denying Defendants- Appellants' Motion to Dismiss. Defendants-Appellants seek reversal of the Decision and Order on the grounds that the lower court, inter alia, (i) erroneously applied, misapplied, or disregarded the law, and (ii) erroneously applied, misapplied, mischaracterized or disregarded the facts. Any additional grounds for reversal will be set forth in Defendants-Appellants' opening brief. NACHE} Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this form is to be filed for a proceeding commenced in this court, fill in only the party’s name and his, her, or its status in this court. No. Party Name Original Status Appellate Division Status xxxxxx xxxxxx Plaintiff Respondent xxxxxxx xxxxx Defendant Appellant Makan Delrahim Defendant Appellant Baharak Amirian Defendant Appellant Rockville Corp. Defendant Appellant 10 11 12 13 14 15 16 17 18 19 20 Informational Statement - Civil 5 of 18 iD: NA AU OUN PK DM INDEX NO. 607197/2022 NYSCEF BOC. NO. 137 RECEIVED NYSCEF: 05/05/2023 Nila Moet} Instructions: Il in the names of the attorneys or firms for the respective parties. If this form is to be filed with the notice of petition or orderto show cause by which a special proceeding is to be commenced in the Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herselfor himself, the box marked “Pro Se” must be checked and the appropriate information for that litigant must be supplied in the spaces provided. Attorney/Firm Name: David E. Ross, Esq. / Kasowitz Benson Torres LLP Address: 1633 Broadway City: New York l State: NY | Zip: 10019 | Telephone No: 212-506-1700 E-mail Address: dross@kasowitz.com Attorney Type: m Retained [Assigned L) Government O Pro Se C1 Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): 2-5 Attorney/Firm Name: Daniel E. Shapiro, Esq. / Ruskin Moscou Faltischek, P.C. Address: 1425 RXR Plaza, East Tower, 15th Floor City: Uniondale l State: NY | Zip: 11556 | Telephone No: 516-663-6600 E-mail Address: dshapiro@rmfpc.com Attorney Type: m Retained [Assigned L) Government O Pro Se C1 Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): 1 Attorney/Firm Name: Address: City: l State: | Zip: l Telephone No: E-mail Address: Attorney Type: Oi Retained [LO Assigned ([) Government O Pro Se C1 Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: l State: | Zip: l Telephone No: E-mail Address: Attorney Type: Oi Retained [LO Assigned ([) Government O Pro Se C1 Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: l State: | Zip: l Telephone No: E-mail Address: Attorney Type: Oi Retained [LO Assigned ([) Government O Pro Se C1 Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: l State: | Zip: | Telephone No: E-mail Address: Attorney Type: Oi Retained [LO Assigned ([) Government O Pro Se C1 Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Informational Statement - Civil 6 of 18 (FILED: NASSAU COUNTY CLERK 05/05/2023 04:53 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 08/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ~ Cormnmmercial Division Part 7 Present: Hon. Sharon M.J. Gianelli x xxxxxx xxxxxx a/k/a xxxxxxxxxx SAKENIL, individually and derivatively on behalf Of ROCKVILLE CORP., Index No: 607197/2022 Plaintiff, Motion Seq. 001 and 02 -against- Amended xxxxxxx xxxxx, individually and as the executor Decision and Order 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. — Papers submitted on this motion: Plaintiff's 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 — Plaintiff's Affidavit, Memorandum of Law and Exhibits in Opposition and in Support ween 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 Hsting 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 i 1 of 16 INDEX NO. 607197/2022 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 03/05/2023 undertaking any actions in furtherance of transferring, pledging, encumbcring, 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)(s), (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 (3) 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; and GD 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 eonsent of Plaintiff. This action was commenced by the filing of a Sammons and Complaint on June 62, 2022. &@ of 16 INDEX NO. 607197/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 05/05/2023 Oral argument was heard on this matter on June 16, 2022. The Court is also in receipt of post-submission correspondence filed by the parties on June 27, 2022 and June 28, 2022. Factual History In 1996, Plaintiff xxxxxx emigrated from Germany 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 10 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, 2000, 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 ofa 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 80% to him and 20% to xxxx. He further alleges that it was understood and agreed between them that Plaintiff xxxxxx would be responsible for running and verseeing 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 of 16 INDEX NO. 607197/2022 NYSCEP DOC. NO. 137 RECEIVED NYSCEF: 08/05/2023 Plaintiff xxxxxx states that xxxx wus 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 alse states that it was separately undersicod 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 fran. ¢ Plaintt ft ff Sakent 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 Hquor leense, and the monthly mortgage payments for the Property and Lot 359, until both properties were free and clear of Hens and mortgages. Plaintiff xxxxxx argues that xxxx did not contribute any personal funds toward the Prop ty3 or the Store, 2 but that he did sign all the murtyage documents for the purchase of the Property and Lot 359. On March 10, 2008, xxxx xxxxx passed away, leaving a Last Will and Testament naming his wife, Defendant xxxxxxx Salmi as Exc tor, and naming Defendant xxxxxxx xxxxx and her brother Defendant Makan Delrahim co-trustees of the disclaimer trust under artic] ourth” of the Last Will and Testament of xxxx xxxxx. Defendant aff 18 INDEX NO. 607197/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 05/05/2023 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 (Lat 369”) for $25,000.00 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 Defendants to purchase xxxx’s 20% ownership interest in the Corporation. P! h1i aintiff 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. Bi off18 INDEX NO. 607197/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 08/05/2023 Defendants have cross-moved the Court, for an Order to dismiss the Complaint in its entirety. Defendants argue that all documentary evidence conclusively establishes that xxxx owned 100% of the Corporatian, and that the 100% ownership interest passed to Defendant xxxxx upon xxxx’s death. Defendants argue that corporate filings, estate filings, K-1'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 income 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 xxxxx’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 be disregarded. Further, Plaintiff argues that the evidence submitted establishes that Plaintiff is the only party who has ever contributed his own B off18 INDEX NO. 607197/2022 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 08/05/2023 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~1'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 daing or procuring or B off18 INDEX NO. 607197/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 08/05/2023 suffering to be done, an act in violation of the plaintiff's 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 aet, which, if committed or continued during the pendeney 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 likeliheod 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 uv. Garuda, 36 A.D.3d 593 {2d Dept. 2007]. The decision whether to grant a preliminary injunction rests in the sound dis etion of the Supreme Court. Doe v. Axelrodi, 73. NY2d 748,750 [19881], Automated Waste Disposal, Ine. v. Mid-Hudson Waste, Inc., 50 AD3d 1073 [2dDept2008}; City of Long Beach v. Sterling American Capital, LLC, 40 AD3d 902, 903 [2d Dept 2007]; Ruiz v. Meloney, 26 AD3d 485 (ad Dept 2006)). 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 CPLR §g2u1, the Court must accept the facts 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 [1994]; Cervini v. 8 B of1B (FILED: NASSAU COUNTY CLERK 05/05/2023 04:53 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 08/05/2023 Zanoni, 95 A.D.3d 919 [2d Dept. 2012]; Sokol v. Leader, 74 A.D.3d 1180, 1181 [2d Dept. 2010]. The evidence should be construed in a light most favorable to the party moved against. Corvino v. Mount Pleasant Cent. Sch, Dist., 305 A.D.2d 364 [2d 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 Palacina v. Equity Mgt. Group, 272 A.D.2d 457 [ad 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, itis 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 B of1B INDEX NO. 607197/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 08/05/2023 itis ORDERED, that, pursuant to CPLR 6312, Plaintiff is directed to post an undertaking in the amount of $2,500,000 from a surety, which shall be an insurance company pursuant to CPLR §2505, within twenty (20) days of the date of this Order; and ttis ORDERED, that the required undertaking and affidavit shall be served and filed pursuant to CLPR §2505; and itis ORDERED, that Defendants’ motion for an Order pursuant to CPLR §g2una)(Q), (a}(s), ({a)(7} and (a}(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 a April 4, 2023 faa Are hare. anelli Justice of the Supfeme Court ENTERED Apr 05 2023 NASSAU COUNTY COUNTY CLERK'S OFFICE i3 16 of 18 INDEX NO. 607197/2022 FILED: NASSAU COUNTY CLERK 05/05/2023 12:55 PM NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 05/05/2023 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, Hon. Sharon MJ. Gianelli -against- AFFIRMATION OF SERVICE 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. I, David E. Ross, an attomey duly admittedto practice before the Courts of the State of New Y ork, hereby affirm under penalty of perjury, pursuantto CPLR 2106, that, (1) Iam over 18 years of age, not a partyto this action, and reside in New Y ork, New York, and (2) onthis date, May 5, 2023, as of the time of electronic filing of the below, I served a true and complete copy of DEFENDANTS’ NOTICE OF APPEAL with supporting papers upon: Daniel E. Shapiro, Esq. Elizabeth S. Sy, Esq. RUSKIN MOSCOU FALTISCHEK, P.C. 1425 RXR Plaza East Tower, 15th Floor Uniondale, New Y ork 11556 Counsel for Plaintiff 17 of 18 INDEX NO. 607197/2022 FILED: NASSAU COUNTY CLERK 05/05/2023 12:55 PM NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 05/05/2023 by causing the above-named persons to receive electronic notification of the filing of the above- mentioned document at the ECF-listed email addresses. /s/ David E. Ross David E. Ross 18 of 18