Preview
(FILED: NASSAU COUNTY CLERK 1271972023 02:34 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2023
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF NASSAU — Commercial Division Part 7
Present: Hon. Sharon MJ. Gianelli
xxxxxx xxxxxx a/k/a xxxxxxxxxx
xxxxxx, individually and derivatively on behalf
Of ROCKVILLE CORP., Index No: 607197/2022
Plaintiff, Motion Seq. 006, 007
~against-
Decision and Order
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 Trast 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.
xxxxxxx xxxxx and ROCKVILLE CORP.,
Counterclaim-Plaintiffs,
-against-
xxxxxx xxxxxx and 172 BARGAIN LIQUORS,
INC.,
Counterclaim-Defendants.
Papers submitted on this motion:
Defendants’ Order to Show Cause, Affirmation and Memo
Of Law in Support xX
Plaintiffs’ Notice of Cross-Motion, Affidavit, Affirmation,
Exhibits and Memo of Law in Support and Opposition x
Defendants’ Affirmation, Memo of Law and Exhibits in
Opposition x
Plaintiffs’ Affirmation in Reply Xx
1 of 6
(FILED: NASSAU COUNTY CLERK 1271972023 02:34 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2023
Defendants now move this Court for an Order vacating the Preliminary Injunction
previously entered by this Court on September 27.
27, 2022, and modified on April 5, 2023.
Plaintiff's Cross-Move for an Order to renew and reargue Defendants’ motion to modify
the Preliminary Injunction to require Plaintiff to post an undertaking, and upon
reargument and renewal, modifying the Court’s Amended Decision and Order, dated
April 4, 2023, to reduce the undertaking to an amount not to exceed $150,000.00.
Defendants moves this Court for a vacature of the Preliminary Injunction which was
granted in this Court Order dated September 27, 2022, which held:
Itis
ORDERED, that Plaintiff's 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
Said Order was Amended by Order of this Court dated April 4, 2023, which held:
Itis
ORDERED, that 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
2 of 6
(FILED: NASSAU COUNTY CLERK 1271972023 02:34 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2023
Itis
ORDERED, that the required undertaking and affidavit shall be served and
filed pursuant to CLPR §2505; and
Defendants argues “Without explanation, Plaintiff has not posted the undertaking nor
filed the affidavit as required by the Amended Order.” Because of Plaintiffs failure,
Defendants maintains “As Plaintiff has failed to meet a crucial condition necessary for
maintenance of the preliminary injunction, the Court should immediately vacate the
preliminary injunction in accordance with CPLR 6314”,
Plaintiff Cross-moves to renew and reargue, and upon renewal and reargument, reduce
the amount of the undertaking to an amount not to exceed $150,000.00.
Plaintiff states that an application was submitted to Thompson Surety Agericy for a bond
in the amount $2,500,000, as directed by the April 4, 2023 Order, but was rejected,
Plaintiff further informs the Court that he was told “that the only way I could obtain a
bond in that amount, or any bond exceeding $250,000 (or possibly less), would be tft
put up collateral valued in the amount of the bond”.
Plaintiff states that he is not financially capable of taking the steps necessary to secure a
bond in the amount previously set by the Court.
Plaintiff argues that if the injunction is lifted, the Defendants will sell the property at
issue, causing irreparable harm to Plaintiff.
3 of 6
INDEX NO. 607197/2022
NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2023
Law/Analysis
The purpose and function of an undertaking given by a Plaintiff pursuant to the
provisions of CPLR §6312(b), prior to the granting of a preliminary injunction, is to
reimburse the Defendants for damages sustained if it is later finally determined that the
preliminary injunction was erroneously granted.
CPLR §6312(b) provides:
(b) Undertaking. Except as provided in section 2512 and in actions brought
under section two hundred sixty-five-a of the real property law, prior to the
granting of a preliminary injunction, the plaintiff shall give an undertaking
in an amount to be fixed by the court, that the plaintiff, if it is finally
determined that he or she was not entitled to an injunction, will pay to the
defendant all damages and costs which may be sustained by reason of the
injunction, including:
1. if the injunction is to stay proceedings in another action, on any ground
other than that a report, verdict or decision was obtained by actual fraud,
all damages and costs which may be, or which have been, awarded in the
other action to the defendant as well as all damages and costs which may be
awarded him or her in the action in which the injunction was granted; or,
2. if the injunction is to stay proceedings in an action to recover real
property, or for dower, on any ground other than that a verdict, report or
decision was obtained by actual fraud, all damages and costs which may be,
or which have been, awarded to the defendant in the action in which the
injunction was granted, including the reasonable rents and profits of, and
any wastes committed upon, the real property which is sought to be
recovered or which is the subject of the action for dower, after the granting
of the injunction; or,
3. if the injunction is to stay proceedings upon a judgment for a sum of
money on any ground other than that the judgment was obtained by actual
4 of 6
(FILED: NASSAU COUNTY CLERK 1271972023 02:34 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2023
fraud, the full amount of the judgment as well as all damages and costs
which may be awarded to the defendant in the action in which the
injunction was granted.
In this matter, Plaintiff has demonstrated a reasonable basis for the failure to comply
with the Court’s April 4, 2023 Order, and for a reduction in the bond amount. The
Court recognizes that, in this case, the forfeiture of the property at issue prior to an
adjudication on the merits would result in irreparable harm. In the interest of justice,
and in an exercise of the Court’s discretion, the Court hereby finds that a reduction in
the amount of the undertaking is warranted.
Accordingly,
Itis
ORDERED, that Defendants’ motion for an Order vacating the preliminary injunction
previously entered by this Court on September 27, 2022, and as modified by the Order
of this Court dated April 5, 2023 is, Denied; and
This
ORDERED, that Plaintiffs’ motion to renew and reargue Defendants’ motion to modify
the Preliminary Injunction to require Plaintiff to post an undertaking ts, Granted; and
Itis
ORDERED, that upon renewal and reargument, the Court is hereby modifying the
Court’s Amended Decision and Order, dated April 4, 2023, to reduce the undertaking to
$150,000.00; and
5 of 6
(FILED: NASSAU COUNTY CLERK 1271972023 02:34 PM INDEX NO. 607197/2022
NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2023
ttis
ORDERED, that Plaintiff is directed to post an undertaking in the amount of
$150,000.00 from a surety, whieh shall be an insurance company pursuant to CPLR
§2505, within twenty business (20) days of the date of this Order; and
Itis
ORDERED, that the required undertaking shall be served and filed pursuant to CPLR
§2505; and
All applications not specifically addressed herein are denied.
‘This constitutes the Decision and Order of the Court.
DATED: Mineola, New York
December 14, 2023
sage
haron MJ.) Gignelli
Justice of the Sdpedme Court
Ne
ENTERED
Dec 19 2023
NASSAU COUNTY
COUNTY CLERK'S OFFICE
6 of 6
Preview
(FILED: NASSAU COUNTY CLERK 1271972023 02:34 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2023 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NASSAU — Commercial Division Part 7 Present: Hon. Sharon MJ. Gianelli xxxxxx xxxxxx a/k/a xxxxxxxxxx xxxxxx, individually and derivatively on behalf Of ROCKVILLE CORP., Index No: 607197/2022 Plaintiff, Motion Seq. 006, 007 ~against- Decision and Order 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 Trast 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. xxxxxxx xxxxx and ROCKVILLE CORP., Counterclaim-Plaintiffs, -against- xxxxxx xxxxxx and 172 BARGAIN LIQUORS, INC., Counterclaim-Defendants. Papers submitted on this motion: Defendants’ Order to Show Cause, Affirmation and Memo Of Law in Support xX Plaintiffs’ Notice of Cross-Motion, Affidavit, Affirmation, Exhibits and Memo of Law in Support and Opposition x Defendants’ Affirmation, Memo of Law and Exhibits in Opposition x Plaintiffs’ Affirmation in Reply Xx 1 of 6 (FILED: NASSAU COUNTY CLERK 1271972023 02:34 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2023 Defendants now move this Court for an Order vacating the Preliminary Injunction previously entered by this Court on September 27. 27, 2022, and modified on April 5, 2023. Plaintiff's Cross-Move for an Order to renew and reargue Defendants’ motion to modify the Preliminary Injunction to require Plaintiff to post an undertaking, and upon reargument and renewal, modifying the Court’s Amended Decision and Order, dated April 4, 2023, to reduce the undertaking to an amount not to exceed $150,000.00. Defendants moves this Court for a vacature of the Preliminary Injunction which was granted in this Court Order dated September 27, 2022, which held: Itis ORDERED, that Plaintiff's 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 Said Order was Amended by Order of this Court dated April 4, 2023, which held: Itis ORDERED, that 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 2 of 6 (FILED: NASSAU COUNTY CLERK 1271972023 02:34 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2023 Itis ORDERED, that the required undertaking and affidavit shall be served and filed pursuant to CLPR §2505; and Defendants argues “Without explanation, Plaintiff has not posted the undertaking nor filed the affidavit as required by the Amended Order.” Because of Plaintiffs failure, Defendants maintains “As Plaintiff has failed to meet a crucial condition necessary for maintenance of the preliminary injunction, the Court should immediately vacate the preliminary injunction in accordance with CPLR 6314”, Plaintiff Cross-moves to renew and reargue, and upon renewal and reargument, reduce the amount of the undertaking to an amount not to exceed $150,000.00. Plaintiff states that an application was submitted to Thompson Surety Agericy for a bond in the amount $2,500,000, as directed by the April 4, 2023 Order, but was rejected, Plaintiff further informs the Court that he was told “that the only way I could obtain a bond in that amount, or any bond exceeding $250,000 (or possibly less), would be tft put up collateral valued in the amount of the bond”. Plaintiff states that he is not financially capable of taking the steps necessary to secure a bond in the amount previously set by the Court. Plaintiff argues that if the injunction is lifted, the Defendants will sell the property at issue, causing irreparable harm to Plaintiff. 3 of 6 INDEX NO. 607197/2022 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2023 Law/Analysis The purpose and function of an undertaking given by a Plaintiff pursuant to the provisions of CPLR §6312(b), prior to the granting of a preliminary injunction, is to reimburse the Defendants for damages sustained if it is later finally determined that the preliminary injunction was erroneously granted. CPLR §6312(b) provides: (b) Undertaking. Except as provided in section 2512 and in actions brought under section two hundred sixty-five-a of the real property law, prior to the granting of a preliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction, including: 1. if the injunction is to stay proceedings in another action, on any ground other than that a report, verdict or decision was obtained by actual fraud, all damages and costs which may be, or which have been, awarded in the other action to the defendant as well as all damages and costs which may be awarded him or her in the action in which the injunction was granted; or, 2. if the injunction is to stay proceedings in an action to recover real property, or for dower, on any ground other than that a verdict, report or decision was obtained by actual fraud, all damages and costs which may be, or which have been, awarded to the defendant in the action in which the injunction was granted, including the reasonable rents and profits of, and any wastes committed upon, the real property which is sought to be recovered or which is the subject of the action for dower, after the granting of the injunction; or, 3. if the injunction is to stay proceedings upon a judgment for a sum of money on any ground other than that the judgment was obtained by actual 4 of 6 (FILED: NASSAU COUNTY CLERK 1271972023 02:34 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2023 fraud, the full amount of the judgment as well as all damages and costs which may be awarded to the defendant in the action in which the injunction was granted. In this matter, Plaintiff has demonstrated a reasonable basis for the failure to comply with the Court’s April 4, 2023 Order, and for a reduction in the bond amount. The Court recognizes that, in this case, the forfeiture of the property at issue prior to an adjudication on the merits would result in irreparable harm. In the interest of justice, and in an exercise of the Court’s discretion, the Court hereby finds that a reduction in the amount of the undertaking is warranted. Accordingly, Itis ORDERED, that Defendants’ motion for an Order vacating the preliminary injunction previously entered by this Court on September 27, 2022, and as modified by the Order of this Court dated April 5, 2023 is, Denied; and This ORDERED, that Plaintiffs’ motion to renew and reargue Defendants’ motion to modify the Preliminary Injunction to require Plaintiff to post an undertaking ts, Granted; and Itis ORDERED, that upon renewal and reargument, the Court is hereby modifying the Court’s Amended Decision and Order, dated April 4, 2023, to reduce the undertaking to $150,000.00; and 5 of 6 (FILED: NASSAU COUNTY CLERK 1271972023 02:34 PM INDEX NO. 607197/2022 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2023 ttis ORDERED, that Plaintiff is directed to post an undertaking in the amount of $150,000.00 from a surety, whieh shall be an insurance company pursuant to CPLR §2505, within twenty business (20) days of the date of this Order; and Itis ORDERED, that the required undertaking shall be served and filed pursuant to CPLR §2505; and All applications not specifically addressed herein are denied. ‘This constitutes the Decision and Order of the Court. DATED: Mineola, New York December 14, 2023 sage haron MJ.) Gignelli Justice of the Sdpedme Court Ne ENTERED Dec 19 2023 NASSAU COUNTY COUNTY CLERK'S OFFICE 6 of 6