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FILED: QUEENS COUNTY CLERK 08/23/2023 10:49 AM INDEX NO. 717523/2023
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/23/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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JAN S. WIMPFHEIMER and SIMCHE DANIEL
FULDA, Index No.
Petitioners,
- against - ATTORNEYAFFIRMATION
IN SUPPORT OF ORDER TO
EAST HUDSON CAPITAL LLC, SHOW CAUSE
Respondent.
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Nathan Cohen, an attorney duly admitted to practice before the courts of the State of New
York affirms pursuant to CPLR § 2106 as follows:
1. I am a member of the bar of this court and counsel at the law firm of Jacobowitz
Newman Tversky LLP, attorneys for petitioners Jan S. Wimpfheimer and Simche Daniel Fulda
(“Petitioners”) in this action. As such, I am fully aware of the underlying action, as well as the
proceedings had therein.
PRELIMINARY STATEMENT
2. I submit this affirmation in support of Petitioners’ emergency motion by order to
show cause (the “OSC”) pursuant to CPLR §§ 6301 and 7503 for a temporary restraining order
and injunctive relief preliminarily and permanently staying arbitration proceedings (the
“Arbitration”) purported to be commenced by respondent East Hudson Capital LLC
(“Respondent” or “EHC”) against Petitioners in the Cayman Islands before the International
Centre for Dispute Resolution – American Arbitration Association (the “ICDR”).
3. As more fully set forth in the Verified Petition, Petitioners’ Affirmations, and
Petitioners’ Memorandum of Law in Support of Verified Petition and Motion to Stay Arbitration,
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the grounds for the stay and injunction are that valid agreements to arbitrate were never made and
do not exist between the parties.
4. On August 4, 2023, I received letter correspondence from Juan C. Zorilla of Fowler
White Burnett, who purported to represent Respondent. A true and correct copy of the letter
correspondence is annexed hereto as Exhibit 1. Enclosed with the letter correspondence was a
copy of a Notice of Arbitration and Demand for Arbitration dated August 1, 2023 (the “Arbitration
Demand”), along with several exhibits, including the promissory notes that are the purported
subject of the Arbitration and which Respondent falsely contends constitute valid and enforceable
agreements to arbitrate.
5. Petitioners never authorized counsel to accept service of the Arbitration Demand
on their behalf. In fact, given the lack of service, the ICDR lacks jurisdiction over Petitioners and
has no authority to conduct arbitration proceedings pursuant to the Arbitration Demand.
6. Yet, on August 17, 2023, Petitioners’ counsel received correspondence from the
ICDR in which the ICDR acknowledged that, on August 15, 2023, the ICDR received a copy of a
Notice of Arbitration dated August 1, 2023 purported to be commenced by Respondent. A true
and correct copy of the ICDR correspondence is annexed hereto as Exhibit 2.
7. A copy of said Notice was not included in the correspondence from the ICDR and
it is unknown to counsel for Petitioners whether the referenced Notice of Arbitration is the same
document as the Arbitration Demand that was enclosed with Mr. Zorilla’s August 4, 2023 letter
correspondence.
8. Nonetheless, the ICDR correspondence indicated that an Administrative
Conference call is scheduled for August 23, 2023 beginning at 11:30 AM Eastern Time. The
correspondence also purported to require Petitioners to (i) file a written Answer to the Notice of
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Arbitration with Respondent and the ICDR within thirty days from the date of the correspondence;
and (ii) complete a Checklist for Conflicts form within fourteen days from the date of the
correspondence, including a list of all witnesses Petitioners expect to present, as well as any
persons or entities with an interest in these proceedings.
9. As more fully demonstrated in the Verified Petition, Petitioners’ Affirmations and
Petitioners’ Memorandum of Law in Support of Verified Petition and Motion to Stay Arbitration,
Petitioners are likely to succeed on the merits of their Verified Petition.
10. Moreover, the balance of equities lies clearly in Petitioners’ favor, as Respondent
is purporting to commence arbitration under false pretenses, based on agreements that were never
finally agreed to and were never authorized to be released from escrow.
11. Finally, absent an injunction, Plaintiff risks immanent irreparable harm based on
the ICDR’s expressed intention to proceed with the Arbitration despite the lack of any valid and
enforceable agreement to arbitrate and despite the fact that Petitioners were never served with the
Notice or Demand for Arbitration.
12. Petitioners are thus caught between a rock and a hard place, as their non-
participation in the Arbitration may result in a default by the ICDR, which has clearly
communicated its intent to proceed with the Arbitration, whereas Petitioners’ participation in the
Arbitration would result in a waiver of Petitioners’ right to seek a stay of the Arbitration and to
challenge its legitimacy in accordance with the rules of this Court. See CPLR § 7503 (authorizing
“a party who has not participated in the arbitration …[to] apply to stay arbitration on the ground
that a valid agreement was not made ….”).
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WHEREFORE, the undersigned respectfully requests that the Court grant Petitioners’
OSC in its entirety, together with such other and further relief as the Court deems just, equitable
and proper.
Dated: Cedarhurst, New York
August 23, 2023
JACOBOWITZ NEWMAN TVERSKY LLP
Attorneys for Petitioners
By: __/s/_Nathan Cohen_____________
Nathan Cohen
Evan M. Newman
377 Pearsall Avenue, Suite C
Cedarhurst, New York 11516
Tel: (212) 612-1110
Fax: (212) 671-1883
Email: ncohen@jntllp.com
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RULE 202.8 CERTIFICATION
Pursuant to Rule 202.8-b of the Uniform Rules for the Supreme Court & The County Court.
I hereby certify that, according to the word count function in Microsoft Word, the software
program utilized to compose the attached document, the number of words in the foregoing
Affirmation, excluding the caption and signature block, is 788, which complies with the word
limits in Rule 202.8-b.
Dated: Cedarhurst, New York
August 23, 2023
JACOBOWITZ NEWMAN TVERSKY
LLP
Attorneys for Petitioners
By: __/s/_Nathan Cohen____________
Nathan Cohen
Evan M. Newman
377 Pearsall Avenue, Suite C
Cedarhurst, New York 11516
Tel: (212) 612-1110
Fax: (212) 671-1883
Email: ncohen@jntllp.com
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Preview
FILED: QUEENS COUNTY CLERK 08/23/2023 10:49 AM INDEX NO. 717523/2023 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/23/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------X JAN S. WIMPFHEIMER and SIMCHE DANIEL FULDA, Index No. Petitioners, - against - ATTORNEYAFFIRMATION IN SUPPORT OF ORDER TO EAST HUDSON CAPITAL LLC, SHOW CAUSE Respondent. ------------------------------------------------------------------X Nathan Cohen, an attorney duly admitted to practice before the courts of the State of New York affirms pursuant to CPLR § 2106 as follows: 1. I am a member of the bar of this court and counsel at the law firm of Jacobowitz Newman Tversky LLP, attorneys for petitioners Jan S. Wimpfheimer and Simche Daniel Fulda (“Petitioners”) in this action. As such, I am fully aware of the underlying action, as well as the proceedings had therein. PRELIMINARY STATEMENT 2. I submit this affirmation in support of Petitioners’ emergency motion by order to show cause (the “OSC”) pursuant to CPLR §§ 6301 and 7503 for a temporary restraining order and injunctive relief preliminarily and permanently staying arbitration proceedings (the “Arbitration”) purported to be commenced by respondent East Hudson Capital LLC (“Respondent” or “EHC”) against Petitioners in the Cayman Islands before the International Centre for Dispute Resolution – American Arbitration Association (the “ICDR”). 3. As more fully set forth in the Verified Petition, Petitioners’ Affirmations, and Petitioners’ Memorandum of Law in Support of Verified Petition and Motion to Stay Arbitration, 1 of 5 FILED: QUEENS COUNTY CLERK 08/23/2023 10:49 AM INDEX NO. 717523/2023 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/23/2023 the grounds for the stay and injunction are that valid agreements to arbitrate were never made and do not exist between the parties. 4. On August 4, 2023, I received letter correspondence from Juan C. Zorilla of Fowler White Burnett, who purported to represent Respondent. A true and correct copy of the letter correspondence is annexed hereto as Exhibit 1. Enclosed with the letter correspondence was a copy of a Notice of Arbitration and Demand for Arbitration dated August 1, 2023 (the “Arbitration Demand”), along with several exhibits, including the promissory notes that are the purported subject of the Arbitration and which Respondent falsely contends constitute valid and enforceable agreements to arbitrate. 5. Petitioners never authorized counsel to accept service of the Arbitration Demand on their behalf. In fact, given the lack of service, the ICDR lacks jurisdiction over Petitioners and has no authority to conduct arbitration proceedings pursuant to the Arbitration Demand. 6. Yet, on August 17, 2023, Petitioners’ counsel received correspondence from the ICDR in which the ICDR acknowledged that, on August 15, 2023, the ICDR received a copy of a Notice of Arbitration dated August 1, 2023 purported to be commenced by Respondent. A true and correct copy of the ICDR correspondence is annexed hereto as Exhibit 2. 7. A copy of said Notice was not included in the correspondence from the ICDR and it is unknown to counsel for Petitioners whether the referenced Notice of Arbitration is the same document as the Arbitration Demand that was enclosed with Mr. Zorilla’s August 4, 2023 letter correspondence. 8. Nonetheless, the ICDR correspondence indicated that an Administrative Conference call is scheduled for August 23, 2023 beginning at 11:30 AM Eastern Time. The correspondence also purported to require Petitioners to (i) file a written Answer to the Notice of 2 2 of 5 FILED: QUEENS COUNTY CLERK 08/23/2023 10:49 AM INDEX NO. 717523/2023 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/23/2023 Arbitration with Respondent and the ICDR within thirty days from the date of the correspondence; and (ii) complete a Checklist for Conflicts form within fourteen days from the date of the correspondence, including a list of all witnesses Petitioners expect to present, as well as any persons or entities with an interest in these proceedings. 9. As more fully demonstrated in the Verified Petition, Petitioners’ Affirmations and Petitioners’ Memorandum of Law in Support of Verified Petition and Motion to Stay Arbitration, Petitioners are likely to succeed on the merits of their Verified Petition. 10. Moreover, the balance of equities lies clearly in Petitioners’ favor, as Respondent is purporting to commence arbitration under false pretenses, based on agreements that were never finally agreed to and were never authorized to be released from escrow. 11. Finally, absent an injunction, Plaintiff risks immanent irreparable harm based on the ICDR’s expressed intention to proceed with the Arbitration despite the lack of any valid and enforceable agreement to arbitrate and despite the fact that Petitioners were never served with the Notice or Demand for Arbitration. 12. Petitioners are thus caught between a rock and a hard place, as their non- participation in the Arbitration may result in a default by the ICDR, which has clearly communicated its intent to proceed with the Arbitration, whereas Petitioners’ participation in the Arbitration would result in a waiver of Petitioners’ right to seek a stay of the Arbitration and to challenge its legitimacy in accordance with the rules of this Court. See CPLR § 7503 (authorizing “a party who has not participated in the arbitration …[to] apply to stay arbitration on the ground that a valid agreement was not made ….”). 3 3 of 5 FILED: QUEENS COUNTY CLERK 08/23/2023 10:49 AM INDEX NO. 717523/2023 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/23/2023 WHEREFORE, the undersigned respectfully requests that the Court grant Petitioners’ OSC in its entirety, together with such other and further relief as the Court deems just, equitable and proper. Dated: Cedarhurst, New York August 23, 2023 JACOBOWITZ NEWMAN TVERSKY LLP Attorneys for Petitioners By: __/s/_Nathan Cohen_____________ Nathan Cohen Evan M. Newman 377 Pearsall Avenue, Suite C Cedarhurst, New York 11516 Tel: (212) 612-1110 Fax: (212) 671-1883 Email: ncohen@jntllp.com 4 4 of 5 FILED: QUEENS COUNTY CLERK 08/23/2023 10:49 AM INDEX NO. 717523/2023 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/23/2023 RULE 202.8 CERTIFICATION Pursuant to Rule 202.8-b of the Uniform Rules for the Supreme Court & The County Court. I hereby certify that, according to the word count function in Microsoft Word, the software program utilized to compose the attached document, the number of words in the foregoing Affirmation, excluding the caption and signature block, is 788, which complies with the word limits in Rule 202.8-b. Dated: Cedarhurst, New York August 23, 2023 JACOBOWITZ NEWMAN TVERSKY LLP Attorneys for Petitioners By: __/s/_Nathan Cohen____________ Nathan Cohen Evan M. Newman 377 Pearsall Avenue, Suite C Cedarhurst, New York 11516 Tel: (212) 612-1110 Fax: (212) 671-1883 Email: ncohen@jntllp.com 5 5 of 5