Motion for Writ in Estate Of Bella Abzug, Isobel J Abzug aka LIZ ABZUG, in her capacity as Co-Administrator of the Estate of Bella S. Abzug and individually, Eve G Abzug , in her capacity as Co-Administrator of the Estate of Bella S. Abzug, Bella Abzug Leadership Institute, Inc., Aka Bali v. Jeff L Lieberman, Bella Documentary Film, Llc, Re-Emerging Films, Llc| Trellis.Law

On April 10, 2024 a Motion-Secondary was filed involving a dispute between Bella Abzug Leadership Institute, Inc., Aka Bali, Estate Of Bella Abzug, Eve G Abzug , In Her Capacity As Co-Administrator Of The Estate Of Bella S. Abzug, Isobel J Abzug Aka Liz Abzug, In Her Capacity As Co-Administrator Of The Estate Of Bella S. Abzug And Individually, and Bella Documentary Film, Llc, Jeff L Lieberman, Re-Emerging Films, Llc, for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 04/10/2024 06:52 AM INDEX NO. 651816/2024
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SUPREME COURT: NEW YORK STATE
NEW YORK COUNTY
--------------------------------------------------------------X
THE ESTATE OF BELLA S. ABZUG,
ISOBEL JO ABZUG aka LIZ ABZUG, in her
capacity as Co-Administrator of the Estate
of Bella S. Abzug and individually, EVE G.
ABZUG, in her capacity as Co-Adminis- Docket:
trator of the Estate of Bella S. Abzug, BELLA Filed:
ABZUG LEADERSHIP INSTITUTE aka
BALI,

-Plaintiffs- JURY
DEMANDED
-against-

JEFF L. LIEBERMAN, individually,
BELLA! DOCUMENTARY FILM, LLC,
RE-EMERGING FILMS, LLC,

Defendants.
------------------------------------------------------------X

Memorandum of Law in Support of Temporary Restraints and
Injunctive Relief Sought by Abzug Plaintiffs
and Bella Abzug Leadership Institute, Inc.

Thomas D. Shanahan, Esq
THOMAS D. SHANAHAN, P.C.
60 East 42nd Street, 46th Floor
New York, New York 10176
Phone (212) 867-1100, x11

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Statement of Facts

The Court is respectfully referred to the Affidavit of Isobel Jo Abzug aka Liz

Abzug (ÒLizÓ), the Affidavit of Eve G. Abzug (ÒEveÓ), Emergency Affirmation of

Thomas D. Shanahan, Complaint and exhibits annexed hereto for a succinct and

complete explanation of the facts giving rise to this dispute and the request

for interim relief. This matter centers around a purported Development

Agreement. Given the import of this specific document to the relief sought in the

emergency application, it is addressed at length below and in the Affidavits of Liz

and Eve.

The Development Agreement

Plaintiffs respectfully submit the Development Agreement entered by the

parties on August 1, 2017, see Exhibit 1, is defective, null and void as a matter of

law. Bella! Documentary Film, LLC (ÒBDFÓ), the entity that contracted with Liz,

has never been organized and filed with the Secretary of State of New York. It did

not exist on August 1, 2017, and does not exist now. Mr. Lieberman signed as the

ÒfounderÓ of an entity that did not exist. An entity with a similar name, Bella

Documentary Film, LLC (ÒBDFLLCÓ) was registered with the State of New York on

November 9, 2018, more than a year after the Development Agreement was signed.

See Exhibit 5. Although it has a similar name, it is not a party hereto and not a

party to the Development Agreement. It is legally irrelevant to this proceeding.

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Mr. Lieberman Failed to Meet
Any of His Obligations Under the
Development Agreement

Annexed as Exhibit 1 to this application is a copy of the Development

Agreement dated August 1, 20171 between Liz and BDF. See Complaint, ¦¦23-34.

Mr. Lieberman failed to meet any of his purported obligations. Pursuant to the

Development Agreement, Liz was entitled to the following input into the

documentary:

¥ ÒThe right to be informed in writing of any Network or other third-party
submissionsÓ; the right to know about Òall meetings, pitches, and/or other
material activities to be undertaken by [Lieberman]Ó. Para. 1;

¥ The right to be invited to participate in all such meeting, pitches and/or
other material activitiesÓ. Para. 1;

¥ ÒServe as a creative consultant for the Film subject to payment of the
compensation set forth hereinÉIt is understood that AbzugÕs capacity on
the Film is to be that of a consultant and executive producer.Ó Para 3;

¥ ÒFilmmaker shall meaningfully consult with Abzug with respect to all
creative decisions relating to the Film.Ó Para. 3;

¥ ÒFilmmaker shall meaningfully consult with Abzug with respect to the
final cut of the film.Ó Para. 3;

¥ ÒAbzug shall receive a film credit of ÒExecutive ProducerÓ on screen, on a
single card in the opening or closing credits, in the first position amongst
producers.Ó Para. 6;

¥ ÒThe film will also grant a separate exclusive credit: Special thank you to
Liz Abzug and the Estate of Bella Abzug.Ó Para. 6.

In addition, Liz and BALI were to be paid compensation by BDF. Liz was to

receive an Òexecutive producerÓ salary of 5% of the total amount committed to the

1
The handwritten notes were made by Liz. I do not have a clean copy without the notes.

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film by any network, distributor, or corporate sponsor. Id., Para. 5. BALI was to

receive 5% of net revenue earned form the exhibition, sale, and/or licensing of The

Film. Id.

Post Development Agreement Conduct

After execution of the Development Agreement, Liz gave access to

Defendants to personal, family mementos, photos, films, articles, and other property

belonging to the Estate and the individual defendants. See Complaint, ¦¦23-34.

Liz provided access as required in the Agreement and as more fully explained in the

Affidavit filed contemporaneously herewith. Although Liz provided access as

required, none of the Plaintiffs recall executing a written consent for Defendants to

utilize the materials in the film. Id. Liz arranged and, in many cases, conducted

interviews with celebrities who knew, worked with and/or had a personal

relationship with Bella Abzug. Id. We respectfully submit that Liz not only met

her obligations pursuant to the Agreement but far exceeded them. The Court is

respectfully referred to the Affidavit of Isobel Jo Abzug aka Liz for a full recitation

of the willful breach.

As Liz explains in her Affidavit, after she gave Mr. Lieberman access to

private Abzug family property, property of the Estate, access to Columbia and after

she arranged access to high-level celebrities for interviews, Mr. Lieberman

disappeared, for an extended period. See Complaint, ¦36.

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The Development Agreement Does Not Impact
The Estate of Abzug or Either Individual
Plaintiff to the Extent of Use of Interviews

The Estate of Abzug is not a signatory to the Development Agreement, and

neither is either individual Plaintiff to the extent Defendants utilized their

interviews, even after being told to cease doing so. Upon information and belief, no

representative of the Estate has ever signed a written consent or any other

document that would preclude the injunctive relief sought herein.

Argument

Standard for Temporary Restraints & Injunctive Relief

A party seeking a temporary restraining order of preliminary injunction must

establish a clear right to that relief under the law and the undisputed facts upon the

moving papers. Gagnon Bus Co. v. Vallo Transp., 13 A.D.3d 334, 335786 N.Y.S.2d

107 (2d Dept. 2004). The movant must demonstrate by clear and convincing evidence

(1) the likelihood of success on the merits; and (2) the prospect of irreparable injury

if the relief is withheld. See Price Paper & Twine Co. v. Miller, 182 A.D.2d 748, 750,

582 N.Y.S.2d 746 (2d Dept. 1992). ÒTo sustain its burden of demonstrating a

likelihood of success on the merits, the movant must demonstrate a clear right to

relief which is plain from the undisputed facts.Ó See Matter of Related Props., 22

A.D.3d 587, 590, 802 N.Y.S.2d 221 (2d Dept. 2005) citing Gagnon supra; Dental

Health Assocs. V. Zangeneh, 267 A.D.2d 421, 701 N.Y.S.2d 106 (2d Dept.

1999); Blueberries Gourmet v. Aris Realty, 255 A.D.2d 348, 680 N.Y.S.2d 557 (2d

Dept. 1998). ÒMere issues of fact will not preclude a preliminary injunction.Ó

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See Dhamoon v. 230 Park S. Apts., 48 A.D.3d 103, 114, 849 N.Y.S.2d 61 (1st Dept.

2007), citing Eklund v. Pinkey, 31 A.D.3d 908, 909, 819 N.Y.S.2d 586 (3d Dept.

2006); Pearlgreen v Yau Chi Chu, 8 A.D.3d 460, 461, 778 N.Y.S.2d 516 (2d Dept.

2004).

Pursuant to CPLR ¤6301, a movant asking for temporary restraints, or a

preliminary injunction must establish Òa probability of success on the merits, danger

of irreparable injury in the absence of an injunction and a balance of equities in its

favor.Ó Barbes Rest. Inc. v ASRR Suzer 218, LLC, 140 AD3d 430 [1st Dept

2016] citing Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800

N.Y.S.2d 48 (2005). To establish a likelihood of success on the merits Ò[a] prima facie

showing a reasonable probably of success is sufficient; actual proof of the petitionerÕs

claims should be left to a full hearing on the merits.Ó Barbes Rest. Inc., 140 A.D.3d

430 (1st Dept. 2016) citing Weissman v. Kubasek, 112 A.D.2d 1086, 493 N.Y.S.2d 63

(2d Dept. 1985). See also, Demartini v. Chatham Green, 169 A.D.2d 689 (1st Dept.

1991). A likelihood of success on the merits may be sufficiently established even

when the facts are in dispute and the evidence need not be conclusive. See, Four

Times Sq. Assoc. v. Cigna Invs., 306 A.D.2d 4, 5 (1st Dept. 2003).

Likelihood of Success on
The Merits

Plaintiffs have demonstrated a clear likelihood of success on the merits given

the undisputable evidence of lack of capacity of BDF to contract and outright fraud

by Defendant Lieberman. BDF did not exist at the time the Development Agreement

was executed and does not exist today. Given the non-existent corporation, the

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Agreement is void as a matter. See Lorisa Capital Corporation v. Gallo, 119 A.D.2d

99 (2nd Dept. 1986), Spring Valley Improvements, LLC v. Abajian, 40 A.D.3d 619 (2nd

Dept. 2007). In Spring Valley, the Court held:

ÒAlthough a person entering into a contract on behalf of a nonexistent
corporate entity may be held personally liable on the contract (see Metro
Kitchenworks Sales, LLC v Continental Cabinets, LLC, 31 AD3d 722, 723
[2006]; San Sung Korean Methodist Church of N.Y. v Professional USA
Constr. Corp., 14 AD3d 501, 503 [2005]; Grutman v Katz, 202 AD2d 293, 294
[1994]; Bay Ridge Lbr. Co. v Groenendaal, 175 AD2d 94, 96 [1991]; Clinton
Invs. Co., II v Watkins, 146 AD2d 861, 862-863 [1989]; Brandes Meat Corp. v
Cromer, 146 AD2d 666, 667 [1989]; 14 NY Jur 2d, Business Relationships ¤
96), here, the plaintiff failed to make out a prima facie case at trial that the
defendants Tony Abajian and Berj Abajian were liable under this theory. The
plaintiff failed to adduce evidence sufficient to demonstrate that the Abajians
wrongfully purported to act on behalf of a nonexistent corporation (cf. Clinton
Invs. Co., II v Watkins, supra; Imero Fiorentino Assoc. v Green, 85 AD2d 419,
420-421 [1982]). We decline to disturb the trial court's determination after
the nonjury trial (see Northern Westchester Professional Park Assoc. v Town
of Bedford, 60 NY2d 492, 499 [1983]; Islamic Ctr. of Harrison v
Islamic Science Found., 262 AD2d 362, 363 [1999]).Ó Id., 620.

At this point, Plaintiffs are not asking to hold Mr. Lieberman personally

liable for damages caused by his fraudulent business practices. Rather, Plaintiffs

seek to stop the recurring damage of Mr. LiebermanÕs exploitation of the memory of

Congressmember Abzug for his own selfish commercial gain. As the contract is

void, this alone demonstrates likelihood of success on the merits. See Persky v.

Bank of Am. Natl. Assn., 261 N.Y. 212, 219 (1933), Kelly v. Asphalt Paving Co., 211

N.Y. 68, 71 (1914). These cases support the legal reality that Òif a non-existent

corporation purports to enter into a contract, that contract is void and

unenforceable. See Animazing Entertainment, Inc. v. Louis Lofredo Assocs. Inc., 88

F.Supp.2d 265, 270 (S.D.N.Y. 2000), International Sports Divers v. Marine Midland

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Bank N.A., 25 F.Supp.2d 101 112-13 (W.D.N.Y. 1998). However, Mr. LiebermanÕs

fraudulent inducement and fraudulent business practices also justify the

termination of the purported agreement.

Fraud

Among the examples of fraud, contracting with Liz through BDF but failing

to meet any of his lawful requirements under the agreement, disappearing for years

during the COVID pandemic and not responding to emails, utilizing the family

interviews without written consent even after being told to stop using it; failing to

pay any compensation to Liz or BALI even though Mr. Lieberman has received, upon

information and belief, more than $500,000.00 from PBS and the Library of Congress

in addition to sales of DVDÕs. See Exhibit 3, 4, 5. Mr. LiebermanÕs wholesale

conversion of property of the Abzug family to unjustly enrich himself is clear.

Further, at some point unknown to Plaintiffs, he transferred the assets and income

to a separate entity controlled by him, Re-Emerging Films, LLC (ÒREFÓ), without

compensating Liz and BALI. This is per se conversion and unjust enrichment. This

would be true as it relates to the approximately $500,000.00, he has received from

PBS and the Library of Congress, after being chosen for the Ken Burns award, not to

mention sales of the DVD version of the documentary. See Affidavit of Liz,

Complaint.

Civil Rights Law, ¤¤50, 51

New York State Civil Rights Law, ¤50, states as relevant:

“A person, firm or corporation that uses for advertising purposes, or for
the purposes of trade, the name, portrait or picture of any living person without

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having first obtained the written consent of such person, or if a minor of his or
her parent or guardian, is guilty of a misdemeanor.Ó

New York State Civil Rights Law, ¤51, states:

“Any person whose name, portrait, picture or voice is used within this
state for advertising purposes or for the purposes of trade without the written
consent first obtained as above provided1 may maintain an equitable action
in the supreme court of this state against the person, firm or corporation so
using his name, portrait, picture or voice, to prevent and restrain the use
thereof; and may also sue and recover damages for any injuries sustained by
reason of such use and if the defendant shall have knowingly used such
personÕs name, portrait, picture or voice in such manner as is forbidden or
declared to be unlawful by section fifty of this article, the jury, in its discretion,
may award exemplary damages.Ó

Both Liz and Eve are featured prominently throughout the documentary.

Neither has given Mr. Lieberman or any company associated with him their written

consent. See Affidavit of Liz, ¦¦ 4-9, Affidavit of Eve. Liz avers she has repeatedly

demanded he stop using her interview and property belonging to the Estate of Abzug

and the Abzug family, but he ignores them. Moreover, numerous high-profile

celebrities who provided interviews for Liz and at her request, upon information and

belief, have also not consented in writing to the use of their interviews. See Liz

Affidavit, ¦¦ 7, 42-50.

These statutes were enacted to prevent commercial exploitation of a personÕs

name and likeness for financial benefit. See Candy v. Maxwell, 9 Misc.2d 329 (1959),

Molina v. Phoenix Sound, Inc., 297 A.D.2d 595 (1st Dept. 2002), Sondik v. Kimmel,

131 A.D.3d 1041 (2nd Dept. 2015¼). If Mr. Lieberman cannot produce a written

consent from my individually clients including a written consent from the Estate, he

must be enjoined from using either interview or any property belonging to my clients

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including family photos, films, articles, or other mementos presently featured without

consent prominently throughout the documentary.

Moreover, Mr. Lieberman is offering the documentary to PBS, other outlets

and on his website through a company known as Re-Emerging Films, LLC, or REF.

See Exhibit 3, 4. None of my clients have ever authorized REF to disseminate their

interviews or family property. More importantly, none of my clients have ever

provided written consent to Mr. Lieberman, BDF or REF to publicly disseminate

their image or property for commercial gain. Accordingly, the Agreement is void as

a matter of law and of no force and effect. See Lorisa Capital Corporation v. Gallo,

119 A.D.2d 99 (2nd Dept. 2016), Sutton v. Houllou, 191 A.D.3d 1031, 1032 (2nd Dept.

2021), Spring Valley Improvements, LLC v. Abajian, 40 A.D.3d 619 (2nd Dept. 2007).

Plaintiffs are Being Embarrassed,
Humiliated and Irreparably Harmed

This is a textbook case where money cannot compensate the injured party.

This case involves wrongful exploitation of the legacy of Bella S. Abzug, and property

belonging to her family and Estate by an unethical filmmaker. He fraudulently

induced my clients to enter into a new void agreement with a company that does not

exist. Without written consent and even after Liz specifically instructed him to stop

using her interview, Mr. Lieberman and REF secret his activities and attempt to sell

the unauthorized images and interviews to major outlets while pretending to have

authority. This is exactly what the legislature in this State sought to make unlawful

when enacting Civil Rights Law ¤51. The legislature specifically empowered courts

to enjoin this type of unlawful conduct. See Sondik v. Kimmel 131 A.D.3d 1041 (2

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Dept. 2015), Molina v. Phoenix Sound Inc., 297 A.D.2d 595 (1 Dept. 2002), Grodin v.

Liberty Cable (1 Dept. 1997) 244 A.D.2d 153, Curtis v. City of New York, NY Slip Op

23196 (NY County, July 5, 2023)

I remind the Court of the presumption in favor of injunctive relief in the

governing statute. N.Y. Civ. Rights Law, ¤51.

ÒAny person whose name, portrait, picture or voice is used within this
state for advertising purposes or for the purposes of trade without the written
consent first obtained as above provided1 may maintain an equitable action
in the supreme court of this state against the person, firm or corporation so
using his name, portrait, picture or voice, to prevent and restrain the use
thereof; and may also sue and recover damages for any injuries sustained by
reason of such use and if the defendant shall have knowingly used such
personÕs name, portrait, picture or voice in such manner as is forbidden or
declared to be unlawful by section fifty of this article, the jury, in its discretion,
may award exemplary damages.Ó

Balancing of the Equities
Favors Plaintiff

If the Defendants cannot provide written consents from Liz, Eve and the Estate

of Bella S. Abzug, the relief sought herein should be granted. Also, if Mr. Lieberman

cannot refute the fact BDF did not exist on August 1, 2017, the Agreement is void as

a matter of law. This would also balance the equities in favor of my clients.

If a Bond is Required it
Should be De Minimus

CPLR ¤2501, et seq. authorizes a court to require the posting of an

undertaking or bond at the CourtÕs discretion. The purpose of a bond or

undertaking is to secure the payment of the amounts that may come due pending

the completion of litigation. See Pillipiak v. Keyes, 185 Misc. 2d 636 (NY Ct. 2000),

Skanska USA Building Inc., v. Atlantic Yards B2 Owner, LLC, 146 A.D.3d 1 (1st

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Dept. 2016). Plaintiffs met all their obligations to Mr. Lieberman and acted in good

faith. He violated their trust and has engaged in substantial fraud. According, the

equities favor the posting a small bond if any pending a hearing on the permanent

injunction.

Conclusion

For all the foregoing reasons, Plaintiffs pray for an order granting the relief

sought in the emergency order to show cause and such other, different, and further

relief as is deemed just, equitable and proper.

Dated: New York, New York
April 9, 2024

By:_________ ____________
Thomas D. Shanahan, Esq.
THOMAS D. SHANAHAN, P.C.
60 East 42nd Street, 46th Floor
New York, New York 10176
Phone (212) 867-1100, x11

CERTIFICATION PURSUANT TO 22 NYCRR ¤202.8-b

I, Thomas D. Shanahan, an attorney duly admitted to practice before this
Court, does hereby certify the Memorandum of Law complies with the word count
limit set forth in 22 NYCRR ¤202-8-b, as it contains 2,920 words. I relied on the
word count tool in Microsoft word to prepare this Certification.

Dated: New York, New York
April 9, 2024

By:_________ ____________
Thomas D. Shanahan, Esq.
THOMAS D. SHANAHAN, P.C.
60 East 42nd Street, 46th Floor

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New York, New York 10176
Phone (212) 867-1100, x11

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Case Info

Judge

Lyle E. Frank Track Judge’s New Case

Case No.

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Document Filed Date

April 10, 2024

Case Filing Date

April 10, 2024

County

Parties

BELLA ABZUG LEADERSHIP INSTITUTE, INC., aka BALI Plaintiff
Bella Documentary Film, LLC Defendant
Estate of Bella Abzug Plaintiff
Eve G Abzug , in her capacity as Co-Administrator of the Estate of Bella S. Abzug Plaintiff
Isobel J Abzug aka LIZ ABZUG, in her capacity as Co-Administrator of the Estate of Bella S. Abzug and individually Plaintiff
Jeff L Lieberman Defendant
Re-Emerging Films, LLC Defendant
SCHENKER, MATTHEW JOSEPH Attorney for the Defendant
SHANAHAN, THOMAS D. Attorney for the Plaintiff

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