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FILED: QUEENS COUNTY CLERK 08/24/2023 07:40 PM INDEX NO. 717523/2023
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 08/24/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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JAN S. WIMPFHEIMER and SIMCHE DANIEL Index No. 717523/2023
FULDA,
Petitioners,
-against- AFFIRMATION IN
SUPPORT OF
EAST HUDSON CAPITAL LLC, MOTION TO DISMISS
Respondent.
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MALLORY A. SULLIVAN, an attorney duly appointed to practice law in the Courts of
the State of New York, hereby affirms the following under the penalties or perjury, pursuant to
CPLR § 2106:
1. I am an attorney at the law firm of Fowler White Burnett P.A., 1395 Brickell
Avenue, 14th Floor, Miami, Florida 33131, counsel for Respondent, EAST HUDSON CAPITAL
LLC, and in that capacity, I have personal knowledge of the facts set forth herein.
2. I respectfully submit this affirmation in support of Respondent's Motion to Dismiss
the Verified Petition.
3. As explained in the Memorandum of Law (filed contemporaneously herewith), the
question of arbitrability or validity of the subject arbitration agreements is within the jurisdiction
of the Arbitrator, not the Court.
4. Petitioners' argument to stay the pending arbitration is that "there is no valid
agreement to arbitrate" because "[t]he validity and enforceability of the [subject Promissory] Note
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was expressly conditioned upon the completion of the Proposed Restructuring" and the alleged
"Proposed Restructuring efforts were unsuccessful." Verified Pet. (DE 1) at ¶¶ 3, 7, 24. 1
5. Petitioners verified that they signed the subject Promissory Notes. Id. at ¶¶ 2, 23,
25, 26. But they argue that the Promissory Notes have not become effective.
6. The subject Promissory Notes included the following material terms:
a. "In the event of any dispute hereunder …. the dispute shall be submitted to
binding arbitration in the following jurisdiction: Cayman Islands"; and
b. "The Arbitration tribunal shall be governed by the rules of the American
Arbitration Association."
Promissory Notes (Composite Exhibit "1" hereto) at p. 1.
7. The subject Promissory Notes, therefore, explicitly incorporate the AAA Rules and
refer "any dispute" to binding arbitration.
8. The "rules of the American Arbitration Association"—which were incorporated
into the Promissory Notes—provide that "[t]he arbitrator shall have the power to rule on his or her
own jurisdiction, including any objections with respect to the existence, scope, or validity of the
arbitration agreement." AAA Comm. Rules R-7(a); see also AAA ICDR Rules art. 21.1 ("The
arbitral tribunal shall have the power to rule on its own jurisdiction, including any objections with
respect to arbitrability, to the existence, scope, or validity of the arbitration agreement(s).")
9. Petitioner's challenge to the arbitrability or validity of the Promissory Notes,
therefore, must be determined by the Arbitrator and not the Court.
10. For this reason, Petitioners' Verified Petition should be dismissed.
11. Additionally, Petitioners have not shown—and cannot show—the necessary
"immediate and irreparable injury" to justify a temporary restraining order.
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EHC disputes this allegation.
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12. Pursuant to CPLR § 6301, Petitioners may seek a temporary restraining order
pending a hearing only if "immediate and irreparable injury, loss or damage will result unless the
defendant is restrained before the hearing can be had." CPLR § 6301. Petitioners have not shown
any such immediate or irreparable injury.
13. To support their request for a preliminary injunction / temporary restraining order,
Petitioners alleged that they "risk[] 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." See Affirmation (DE 10) at ¶ 11.
14. As explained above, whether the dispute is arbitrable before the ICDR is a question
to be determine by the Arbitrator, not the Court. If Petitioners have a viable defense that the subject
Promissory Notes are "not valid," then Petitioners have the right to litigate that defense before the
Arbitrator.
15. Moreover, Petitioners' "injury" would be compensable with money damages.
Shubin v. Slate Digital, Inc., 21 CIV. 9464 (PAE), 2022 WL 168152, at *5 n.4 (S.D.N.Y. Jan. 19,
2022) ("Where there is no evidence that money damages will be inadequate to compensate a
plaintiff, such injunctive relief will not be granted.").
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Respectfully submitted,
/s/ Mallory A. Sullivan
Mallory A. Sullivan
Email: MSullivan@fowler-white.com
Juan C. Zorrilla
Fla. Bar No. 381403
Email: jzorrilla@fowler-white.com
FOWLER WHITE BURNETT, P.A.
Brickell Arch, Fourteenth Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-9200
Facsimile: (305) 789-9201
TO: JACOBOWITZ NEWMAN TVERSKY LLP
Attorneys for Plaintiff
377 Pearsall Avenue, Suite C
Cedarhurst, New York, 11516
Telephone: (212) 612-1110
Email: enewman@jntllp.com
ncohen@jntllp.com
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FILED: QUEENS COUNTY CLERK 08/24/2023 07:40 PM INDEX NO. 717523/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 08/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS -----------------------------------------------------------------X JAN S. WIMPFHEIMER and SIMCHE DANIEL Index No. 717523/2023 FULDA, Petitioners, -against- AFFIRMATION IN SUPPORT OF EAST HUDSON CAPITAL LLC, MOTION TO DISMISS Respondent. -----------------------------------------------------------------X MALLORY A. SULLIVAN, an attorney duly appointed to practice law in the Courts of the State of New York, hereby affirms the following under the penalties or perjury, pursuant to CPLR § 2106: 1. I am an attorney at the law firm of Fowler White Burnett P.A., 1395 Brickell Avenue, 14th Floor, Miami, Florida 33131, counsel for Respondent, EAST HUDSON CAPITAL LLC, and in that capacity, I have personal knowledge of the facts set forth herein. 2. I respectfully submit this affirmation in support of Respondent's Motion to Dismiss the Verified Petition. 3. As explained in the Memorandum of Law (filed contemporaneously herewith), the question of arbitrability or validity of the subject arbitration agreements is within the jurisdiction of the Arbitrator, not the Court. 4. Petitioners' argument to stay the pending arbitration is that "there is no valid agreement to arbitrate" because "[t]he validity and enforceability of the [subject Promissory] Note 1 of 4 FILED: QUEENS COUNTY CLERK 08/24/2023 07:40 PM INDEX NO. 717523/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 08/24/2023 was expressly conditioned upon the completion of the Proposed Restructuring" and the alleged "Proposed Restructuring efforts were unsuccessful." Verified Pet. (DE 1) at ¶¶ 3, 7, 24. 1 5. Petitioners verified that they signed the subject Promissory Notes. Id. at ¶¶ 2, 23, 25, 26. But they argue that the Promissory Notes have not become effective. 6. The subject Promissory Notes included the following material terms: a. "In the event of any dispute hereunder …. the dispute shall be submitted to binding arbitration in the following jurisdiction: Cayman Islands"; and b. "The Arbitration tribunal shall be governed by the rules of the American Arbitration Association." Promissory Notes (Composite Exhibit "1" hereto) at p. 1. 7. The subject Promissory Notes, therefore, explicitly incorporate the AAA Rules and refer "any dispute" to binding arbitration. 8. The "rules of the American Arbitration Association"—which were incorporated into the Promissory Notes—provide that "[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement." AAA Comm. Rules R-7(a); see also AAA ICDR Rules art. 21.1 ("The arbitral tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to arbitrability, to the existence, scope, or validity of the arbitration agreement(s).") 9. Petitioner's challenge to the arbitrability or validity of the Promissory Notes, therefore, must be determined by the Arbitrator and not the Court. 10. For this reason, Petitioners' Verified Petition should be dismissed. 11. Additionally, Petitioners have not shown—and cannot show—the necessary "immediate and irreparable injury" to justify a temporary restraining order. 1 EHC disputes this allegation. 2 of 4 FILED: QUEENS COUNTY CLERK 08/24/2023 07:40 PM INDEX NO. 717523/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 08/24/2023 12. Pursuant to CPLR § 6301, Petitioners may seek a temporary restraining order pending a hearing only if "immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had." CPLR § 6301. Petitioners have not shown any such immediate or irreparable injury. 13. To support their request for a preliminary injunction / temporary restraining order, Petitioners alleged that they "risk[] 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." See Affirmation (DE 10) at ¶ 11. 14. As explained above, whether the dispute is arbitrable before the ICDR is a question to be determine by the Arbitrator, not the Court. If Petitioners have a viable defense that the subject Promissory Notes are "not valid," then Petitioners have the right to litigate that defense before the Arbitrator. 15. Moreover, Petitioners' "injury" would be compensable with money damages. Shubin v. Slate Digital, Inc., 21 CIV. 9464 (PAE), 2022 WL 168152, at *5 n.4 (S.D.N.Y. Jan. 19, 2022) ("Where there is no evidence that money damages will be inadequate to compensate a plaintiff, such injunctive relief will not be granted."). 3 of 4 FILED: QUEENS COUNTY CLERK 08/24/2023 07:40 PM INDEX NO. 717523/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 08/24/2023 Respectfully submitted, /s/ Mallory A. Sullivan Mallory A. Sullivan Email: MSullivan@fowler-white.com Juan C. Zorrilla Fla. Bar No. 381403 Email: jzorrilla@fowler-white.com FOWLER WHITE BURNETT, P.A. Brickell Arch, Fourteenth Floor 1395 Brickell Avenue Miami, Florida 33131 Telephone: (305) 789-9200 Facsimile: (305) 789-9201 TO: JACOBOWITZ NEWMAN TVERSKY LLP Attorneys for Plaintiff 377 Pearsall Avenue, Suite C Cedarhurst, New York, 11516 Telephone: (212) 612-1110 Email: enewman@jntllp.com ncohen@jntllp.com 4 of 4