Motion for Summary Judgment in Barry Hersko v. Morris Hersko, Sara G Hersko| Trellis.Law

On August 03, 2021 a Exhibit,Appendix was filed involving a dispute between Barry Hersko, and Morris Hersko, Sara G Hersko, for Real Property - Other (equitable mortgage) in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 05/09/2024
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS

BARRY HERSKO,
Index No.: 519449/2021
Plaintiff,

-against-

MORRIS HERSKO and SARA G. HERSKO,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

ABRAMS FENSTERMAN, LLP

Melanie I. Wiener, Esq.
Anthony J. Genovesi, Esq.
1 MetroTech Ctr, Suite 1701
Brooklyn, NY 11201
718-215-5300

Attorneys for Defendants

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................... 1
FACTUAL HISTORY .................................................................................................................... 8
LEGAL STANDARD ..................................................................................................................... 8
ARGUMENT .................................................................................................................................. 9
POINT I .......................................................................................................................................... 9
PLAINTIFF’S BREACH OF CONTRACT CLAIM VIOLATES THE STATUTE OF FRAUDS
AND MUST BE DISMISSED ....................................................................................................... 9
A. There are no issues of fact as to whether Plaintiff’s breach of contract claim concerns an
interest in real property and thus violates the SOF ..................................................................... 9
B. There is no genuine issue of fact as to whether a written loan agreement exists ............. 10
C. There is no genuine issue of fact as to whether Plaintiff partially performed .................. 11
D. There is no genuine issue of fact that the loan agreement could not have been completed
within one year .......................................................................................................................... 12
POINT II ....................................................................................................................................... 14
PLAINTIFF’S CLAIMS MUST BE DISMISSED AS THEY ARE BARRED BY THE
STATUTE OF LIMITATIONS .................................................................................................... 14
CONCLUSION ............................................................................................................................. 14
CERTIFICATION REGARDING WORD LIMIT ...................................................................... 15

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TABLE OF AUTHORITIES

Cases

A. Aversa Brokerage, Inc. v. Honig Ins. Agency, Inc., 249 A.D.2d 345 (2d Dep’t 1998) ............ 13
Abdelfattah v. Najar, 173 A.D. 3d 657 (2d Dep’t 2019) .............................................................. 11
Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525 (1991)................................................................. 9
Andre v. Pomerov, 35 N.Y.2d (1974) ............................................................................................ 8
Bayside Health Club, Inc. v. Weidel, 170 A.D.2d 474 (2d Dep’t 1991) ....................................... 13
Burns v. McCormick, 233 N.Y. 230 (1922) .................................................................................. 11
De Beerski v. Paige, 36 N.Y. 537 (1867) ..................................................................................... 10
Ely-Cruikshank Co., Inc. v. Bank of Montreal, 81 N.Y.2d 399 (1993) ........................................ 14
Friedman v. Connecticut General Life Ins. Co., 30 A.D.3d 349 (1 Dep’t 2006) ......................... 11
Goerge v. Dobson, 261 A.D. 447 (2d Dep’t 1941) ....................................................................... 10
Klein v. Jamor Purveyors, Inc., 108 A.D.2d 344 (2d Dep’t 1985) ......................................... 11, 12
Matter of Zelouf, 183 A.D.3d 900 (2d Dep’t 2020) ...................................................................... 11
Menzel v. Plotnick, 202 A.D.2d 558 (2d Dep’t 1994) ................................................................ 8, 9
Moloney v. Weingarten., 118 A.D.2d 836 (2d Dep’t 1986).......................................................... 10
Msc Claim Services, Inc. v. Gajano, No. 30294300, 2000 WL 35928262 (N.Y. Sur. Jun. 2000) 13
Pritsker v. Soyferman, 275 A.D.2d 738 (2d Dep’t 2000) ....................................................... 12, 13
Ramanathan v. Aharon, 109 A.D.3d 529 (2d Dep’t 2013) ........................................................... 11
Roman Cath. Church of the Epiphany v. City of New York, 183 A.D.3d 775 (2d Dep’t 2020) ... 11
Shreey v. Clifford Chance Rogers & Wells LLP, 3 N.Y.3d 554 (2004) ......................................... 9
Sitkowski v. Petzing, 175 A.D.2d 801 (2d Dep’t 1991) ................................................................ 14
Strujan v. Glencord Bldg. Corp., 137 A.D.3d 1252 (2d Dep’t 2016)........................................... 11
Thompson v. Lamprecht Transport, 39 A.D.3d 846 (2d Dep’t 2007) .......................................... 11
Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) ................................................................. 9

Statutes

N.Y. Gen. Oblig. Law §5-701(a)(10) ........................................................................................... 10
New York General Obligations Law §5-701(a)(1) ....................................................................... 12
CPLR §3012.................................................................................................................................... 8

iii

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CPLR §3211(a)(7) ........................................................................................................................ 11
CPLR §3215.................................................................................................................................... 7
CPLR §213.................................................................................................................................... 14
CPLR §3212.............................................................................................................................. 1, 12

Other Authorities

37 C.J.S. Frauds, Statute of § 55 ................................................................................................... 13

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Defendants Morris Hersko (“Morris”) and Sara G. Hersko (“Sara”) (collectively

“Defendants”) respectfully submit this memorandum of law in support of Defendants’ motion for

an Order (i) pursuant to CPLR §3212 granting summary judgment; (ii) awarding attorney fees,

costs, and expenses incurred by Defendants for making this application; and (iii) for such other

and further relief as the Court deems just, proper, and equitable.

PRELIMINARY STATEMENT

Plaintiff’s action is nothing more than a sham lawsuit only meant to harass his dying

brother, his brother’s son, and wife. This action is but one component of a campaign of retaliation

against his brother who discovered and objected to Plaintiff embezzling tens of millions of dollars

from their business. That is why the disjointed allegations Plaintiff’s slapped together in the

complaint - even if they were true - must be dismissed as violative of the Statute of Frauds and the

Statue of Limitations. Plaintiff has manufactured a lawsuit alleging nonexistent loans related to

real property from himself to his nephew and niece. Plaintiff does not have one iota of proof of

any alleged agreement, either written or oral, relating to these alleged loans allegedly used towards

the purchase of real property and mortgages, in violation of the Statute of Frauds. Furthermore,

the breach of contract and constructive trust causes of action are barred by the Statute of

Limitations as the alleged breaches occurred over six years ago when Defendants breached their

purported promise to repay Plaintiff.

Briefly, although it is not the operative complaint, a review of Plaintiff’s First Amended

Complaint (see Affirmation of Melanie I. Wiener dated March 29, 2024 (“Wiener Aff.”) at Exhibit

A, NYSCEF Doc. No 32) (“FAC”) is instructive on the extent of Barry’s bogus lawsuit and

allegations. In the FAC, Plaintiff alleges he loaned Four Hundred Fifty-thousand dollars

($450,000.00) to Defendants in 2011 and 2012 to help Defendants purchase and then pay their

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mortgages on two properties. Specifically, Plaintiff alleges he made the following loans:

• On or about November 28, 2011, Plaintiff loaned $190,000 to facilitate Defendants

purchasing the property located at 1963 63rd Street Brooklyn, NY (the “House”).

• On or about March 5, 2012, Plaintiff loaned $169,834.45 to facilitate Defendants

pay the mortgage (the “TD Mortgage”) encumbering the property located at 2039

57th Street, Brooklyn, NY 11204 (the “Condo”).

• On or about March 12, 2012. Plaintiff loaned $90,163.55 to facilitate Defendants

pay the TD Mortgage encumbering the Condo. (The above alleged loans are

collectively referred to hereinafter as the “Loans”).

Plaintiff alleges the loans total $450,000 but the above three sums total $449,998 (see

Wiener Aff. at Exhibit A, NYSCEF Doc. No 32)).

Undeterred by the absence of any writing documenting the loans, Plaintiff next claims in

the FAC that the parties agreed to complex repayment terms where beginning in March 2014,

Defendants agreed to repay Plaintiff $100,000 in twenty-four (24) monthly installment of $5,000.

See id. ¶38. The fictitious nature of this agreement (and the reason the SOF requires writings to

enforce agreements such as the one Plaintiff alleges) is demonstrated by its own inherent

contradiction; twenty-four payments of $5,000 totals $120,000, not $100,000. Plaintiff

nevertheless claims, after making the twenty-four monthly installment payments, Defendants

would either (i) pay the $350,000 balance of the Loans, (which simple math reveals would in fact

be $330,000) by the 2017 maturity date; or (ii) convey title in the Condo to Plaintiff. See id. ¶32

(“loan agreement’).

None of Plaintiff’s numbers in his FAC (see Wiener Aff. at Exhibit A, NYSCEF Doc. No

32)) add up to the amount he claims he loaned because he’s making facts up as he goes along.

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Barry Hersko lives by his own set of rules, and they never make sense to any objective observer.

For instance, his FAC alleging the above facts was verified and sworn to by Barry on December

13, 2021. But just a few months earlier, on August 3, 2021, Barry verified and swore to a

completely different set of facts in his original Complaint (see Wiener Aff. at Exhibit B, NYSCEF

Doc. No. 1) that alleges for the same two properties he loaned Defendants $362,225 in October of

2020 and $260,000 in March of 2019 which total $622,225. See id.

Even more outrageous and disingenuous, Barry then files a Second Amended Complaint

(“SAC”) on May 1, 2023, the operative Complaint (see Wiener Aff. at Exhibit C, NYSCEF Doc.

No. 79). In this newest verified complaint, sworn to by Barry on April 30, 2023, Barry now

conveniently alleges he loaned Seven Hundred Thousand Dollars ($700,000.00) to Defendants in

2011, 2012 and 2014. Specifically, Plaintiff now alleges he made the following loans:

• On or about November 28, 2011, Plaintiff loaned $190,000 to facilitate Defendants

purchasing the property located at 1963 63rd Street Brooklyn, NY (the “House”).

• On or about March 5, 2012, Plaintiff loaned $169,834.45 to facilitate Defendants

pay the mortgage (the “TD Mortgage”) encumbering the property located at 2039

57th Street, Brooklyn, NY 11204 (the “Condo”).

• On or about March 12, 2012. Plaintiff loaned $90,163.55 to facilitate Defendants

pay the TD Mortgage encumbering the Condo.

• On or about March 25, 2014, plaintiff loaned $250,000 to facilitate Defendants pay

the TD Mortgage encumbering the Condo (collectively the “Loans”).

Plaintiff also now alleges the Loans were made by Plaintiff directing his counsel, Abraham

Weisel, Esq. (“Weisel”) to tender payments from Weisel’s escrow account to the Defendants

directly or directly to TD Bank, the Defendants’ mortgagor. Plaintiff also alleges the loans total

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$700,000 but, the above three sums total $699,998 (see Exhibit C, NYSCEF Doc. No. 79).

Plaintiff also specifically alleges that all loans were memorialized in Weisel’s escrow account with

a written notation of same. See id. ¶55.

Plaintiff next claims again in the SAC that the parties agreed to complex repayment terms

whereby beginning in March 2014, Defendants agreed to repay Plaintiff $100,000 in twenty-four

(24) monthly installment of $5,000. See id. ¶38. Again, the fictitious nature of this agreement (and

again, the reason the SOF requires writings to enforce agreements such as the one Plaintiff alleges)

is demonstrated again by its own inherent contradiction; twenty-four payments of $5,000 totals

$120,000, not $100,000. Plaintiff nevertheless claims, after making the twenty-four monthly

installment payments, Defendants would either (i) pay the $600,000 balance of the Loans, (which

simple math reveals would in fact be $580,000) by the 2017 maturity date; or (ii) convey title in

the Condo to Plaintiff. See id. ¶32 (“loan agreement’).

The opening paragraph of Barry’s pleading should begin with “Once upon a time…”

because from August 2021 to May 2023 Barry’s entire fairytale including how much he loaned,

when he loaned the money, the installments in which the money was loaned and the repayment

terms all completely changed – yet he swore to three (3) different versions. Thus, even if the Court

credits everything Barry says as true, the case must be dismissed because none of it makes sense.

Plaintiff’s SAC alleges two causes of action: (1) breach of an alleged oral agreement

(emphasis added); and (2) imposition of a constructive trust. For the reasons stated herein, the

Court must grant Defendants’ motion for summary judgment and dismiss Plaintiff’s claims.

First, Plaintiff’s claim for breach of contract is barred by the statute of frauds (“SOF”).

Pursuant to General Obligations Law §5-701(a)(10), contracts involving an interest in real property

must be in writing. Additionally, pursuant to General Obligations Law §5-701(a)(1), agreements

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by its terms that cannot be performed within one year from the making must be in writing.

Plaintiff’s allegations fall squarely within the SOF. The alleged loan agreement (i) concerns an

interest in real property; and (ii) as alleged in the SAC, repayment of the Loans related to the real

property could not have been completed within one year. Plaintiff was unable to prove the

allegations set forth in his SAC regarding the alleged agreement between the parties as Plaintiff

failed to produce any documentary evidence of an agreement memorializing the terms of the

Loans. There was no loan and therefore, there was no repayment agreement which is why neither

Plaintiff, nor Defendant have any evidence to support Plaintiff’s bogus allegations. Plaintiff’s

failure to produce a writing concerning the loan agreement and subscribed by the parties to be

charged or his lawful agent is in violation of the SOF.

Second, Plaintiff’s claims for breach of contract and constructive trust must be dismissed

as Plaintiff failed to bring these claims within the statute of limitations (“SOL”). Under New York

law, claims for breach of contract and constructive trust must be brought within six years of their

accrual. The SOL on a breach of contract claim begins to accrue at the time of breach. The SOL

on a constructive trust claim also begins to accrue upon occurrence of wrongful act giving rise to

duty of restitution.

The SAC states that the alleged loan agreement required Defendants to make twenty-four

monthly installment payments of $5,000 beginning in March 2014, totaling $100,000. According

to the SAC, Defendants allegedly made one payment on March 14, 2014 and did not make another

payment until March 15, 2015. See SAC ¶41. Therefore, according to Plaintiff’s own pleading,

Defendants’ alleged wrongful conduct and material breach occurred in April 2014 when

Defendants failed to make the second monthly payment of $5,000. Plaintiff had six years from

Defendants’ alleged material breach in April 2014 to commence suit. Therefore, the SOL expired

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in April 2020, thus both claims must be dismissed.

Lastly, Plaintiff’s claims are a factual impossibility and cannot be proven by Plaintiff, nor

has Plaintiff even attempted to prove same. Paper discovery is complete, and Plaintiff has not

submitted one iota of proof of demonstrating (i) a written loan agreement; (ii) the Loans were

actually made by Plaintiff to Defendants; (ii) the terms of the loan, any interest rate, any terms of

repayment; and (iii) Defendants’ efforts to repay the Loans or lack thereof. Plaintiff cannot prevail

on a breach of contract claim as no contract or agreement, written or oral, exists because Plaintiff

never furnished Defendants any loans. Furthermore, Plaintiff cannot prevail on his constructive

trust claim as Plaintiff cannot meet the high burden of proving this cause of action by clear and

convincing evidence. Similarly, Plaintiff has no documentation to indicate any promises made by

Defendants and Plaintiff’s reliance on same. The reason why Plaintiff is unable to prove his case

is because the alleged Loans were simply never provided to Defendants by Plaintiff. Instead, the

monies were given to Defendants from Weisel’s escrow account, which funds are jointly owned

by Morris’s father and Plaintiff’s brother, Isaac Hersko (“Isaac”).

As a reminder to the Court, Isaac and Barry are brothers and have been partners in the

business of acquiring real estate properties for investments purposes since 1987. From 1989 to

1996, Isaac and Barry entered a business venture involving the funding and purchasing of nine

investment properties in Brooklyn, New York (collectively, “the properties”). The brothers had an

agreement, which had not been reduced to writing, governing their business dealings related to the

properties, which provided that (1) Isaac provided the money to purchase the properties, (2) Barry

held title to each of the properties through separate holding companies—the corporate

defendants—and (3) Isaac and Barry were each 50% equitable owners of the properties and would

share equally in all profits relating to the properties. Isaac and Barry keep their collective business

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monies in their attorney Weisel’s professional escrow account. Weisel— who is not a party to this

action —acted as the brothers’ attorney and escrow agent in their business dealings, including

those related to the properties and their additional dealings related to their business of private

lending. As such, Weisel maintained possession of the brothers’ funds concerning all their business

dealings in his professional escrow account. Isaac and Barry ultimately memorialized their

longstanding partnership in a written partnership agreement (the “partnership agreement”). See

Wiener Aff. at Exhibit D, NYSCEF Doc. No. 386.

In accordance with the brothers’ business practices, the agreement states that Isaac and

Barry are each 50% owners of each property and would share equally in all profits relating to the

properties. Those profits were maintained in Weisel’s escrow account. Around 2017, Isaac was

provided with financial documents showing that Barry had withdrawn funds from the brothers’

shared business monies held by Weisel that far exceeded the funds that Isaac had withdrawn. At

that time, Barry had withdrawn about $25,000,000 more than Isaac had withdrawn from Weisel’s

account. In 2020, Isaac was provided with additional financial documents showing that Barry had

continued to withdraw funds from the brothers’ shared monies that far outpaced the funds that

Isaac had withdrawn. By that point, Barry had withdrawn approximately $45,000,000 more than

Isaac had withdrawn. Isaac commenced a lawsuit (see Wiener. Aff. at Exhibit E, NYSCEF Doc.

No. 1) (“Isaac Complaint”) alleging all the above and numerous causes of action, including, but

not limited to Conversion, Money Had and Received, an Accounting of the monies being held in

Weisel’s escrow account, and a Declaratory Judgment that the monies being held in Weisel’s

escrow account were owned equally by both Isaac and Barry.

On April 21, 2022, Justice Karen Rothenberg granted Isaac’s motions pursuant to CPLR

3215 for leave to enter default judgments against Barry and the corporate defendants and denied

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defendants’ motion pursuant to CPLR §3012 for an extension of time to file an answer. See Wiener

Aff. at Exhibit F. NYSCEF Doc. Nos. 246 and 247 (“April Default Order”). Therefore, all

traversable allegations in the Isaac Complaint have been admitted, including the equal ownership

of all monies held in Weisel’s escrow account. This April Default Order has now been affirmed

by the Appellate Division, Second Department. See Wiener Aff. at Exhibit G, NYSCEF Doc. No.

632 (“AD Order, collectively “Default Order”).

The Default Order resolves any question that Isaac owned one-half the money in Weisel’s

attorney escrow account and thus explains why some of it may have been transferred to Isaac’s

son, Morris. Weisel has been Isaac’s attorney, for both his personal and business endeavors for

over ten (10) years.

Therefore, Defendants’ motion for summary judgment must be granted as there are no

questions of facts as to whether (i) Plaintiff’s oral contract violates the SOF; (ii) Plaintiff has failed

to bring his breach of contract claim and constructive trust claim within the permitted SOL; (iii)

Plaintiff is collaterally estopped from claiming that the funds in Weisel’s escrow account belong

to him; and (iv) Plaintiff failed to meet his burden of proving the Loans.

FACTUAL HISTORY

Defendants respectfully refer the Court to Defendants’ Statement of Facts submitted in

support of their Motion for Summary Judgment and the Affirmations of Morris Hersko and Sara

Hersko.

LEGAL STANDARD

It is well-settled in New York that a motion for summary judgment shall be granted where

the moving party establishes that there exist no genuine triable issues of law or fact. See Andre v.

Pomerov, 35 N.Y.2d 362 (1974); see also Menzel v. Plotnick, 202 A.D.2d 558, 559 (2d Dep’t

1994) (“the well know general rule is that summary judgement will only be granted if there are no
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material and triable issues of fact”). Conclusions, expressions of hope or unsubstantiated

allegations are insufficient to defeat a party’s prima facie demonstration of entitlement to summary

judgement. See Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 533 (1991) quoting Zuckerman

v. City of New York, 49 N.Y.2d 557 (1980). Once the movant makes this prima facie showing, the

burden shifts to the party opposing the motion and said party must produce evidentiary proof to

establish the existence of material issues of fact which require a trial of action. See id. at 562.

Applying these standards here, Defendants’ motion for summary judgment should be

granted in its entirety.

ARGUMENT

POINT I

PLAINTIFF’S BREACH OF CONTRACT CLAIM VIOLATES THE STATUTE OF
FRAUDS AND MUST BE DISMISSED

Plaintiff’s first cause of action alleges a breach of an oral loan agreement and must be

dismissed in its entirety as it is void under the SOF. The SAC alleges Plaintiff’s made four Loans

to Defendants totaling $700,000 to purchase and then to pay down financing on the Properties.

Defendants allegedly agreed to repay $100,000 of the total $700,000 in twenty-four monthly

installments, which actually equals $120,000, not $100,000, and then either repay the remaining

$600,000 by 2017 (or $580,000 by simple math) or convey title in the Condo to the Plaintiff.

A. There are no issues of fact as to whether Plaintiff’s breach of contract claim
concerns an interest in real property and thus violates the SOF

New York courts routinely grant summary judgment motions dismissing complaints based

on the basis of the statute of frauds where the moving party demonstrates the action falls within

the statute of frauds and is violated. See Shreey v. Clifford Chance Rogers & Wells LLP, 3 N.Y.3d

554 (2004) (granting Defendant’s cross-motion for summary judgment dismissing the complaint

in its entirety for failure to comply with the statute of frauds).

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An oral agreement to convey real property and/or an interest in real property is void under

the SOF. See N.Y. Gen. Oblig. Law §5-701(a)(10) (providing) that “[a] contract . . . for the sale,

of any real property, or an interest therein, is void unless the contract or some note or memorandum

thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his

lawful agent thereunto authorized by writing.” Absent this writing, a party’s claim is void. See

Moloney v. Weingarten. 118 A.D.2d 836, 837 (2d Dep’t 1986). Furthermore, it is well settled that

if part of one entire contract could be void under the statute of frauds, the whole is void. See Goerge

v. Dobson, 261 A.D. 447 (2d Dep’t 1941) citing De Beerski v. Paige, 36 N.Y. 537, 529 (1867).

There is no genuine issue of fact that the alleged loan agreement falls within the SOF as

part of the loan agreement involves an interest in property. See SAC ¶¶33 and 40. According to

the SAC, in exchange for the Loans, starting in March 2014, Defendants agreed to pay $100,000

in twenty-four (24) monthly installments of $5,000 until Defendants repaid $100,000 of the

$700,000 loan balance. See SAC ¶38. The parties allegedly further agreed that after making the

twenty-four monthly installment payments, Defendants were obligated to either (i) repay the

$600,000 balance of the Loans by the 2017 maturity date; or (ii) convey title in the Condo to

Plaintiff. See SAC ¶¶33; 40-41. Plaintiff’s own allegations of the loan agreement include

Plaintiff’s potential interest in real property. Furthermore, it is irrelevant that the alleged failed

conveyance of real property is one of two contingencies of performance under the alleged loan

agreement. So long as one part of the entire contract is void under the statute of frauds, the whole

is void. See Goerge, 261 A.D.at 447.

B. There is no genuine issue of fact as to whether a written loan agreement exists

Additionally, no genuine issue of fact exists as to whether an agreement between Plaintiff

and Defendants exists memorializing the terms of the Loans. Plaintiff has not produced any

documentary evidence resembling an agreement or contract regarding the terms of the Loans.
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Furthermore, Plaintiff’s own SAC concedes that no such writing exists, and Plaintiff has not come

forward with any evidence regarding any other evidence to support the existence of any oral

agreement. See SAC ¶39.

C. There is no genuine issue of fact as to whether Plaintiff partially performed

There is no genuine issue of fact of whether Plaintiff partially performed. The doctrine of

part performance is only applicable in “exceptional situations” where the conduct is

“unequivocally referable” to the oral contract. Klein v. Jamor Purveyors, Inc., 108 A.D.2d 344,

349 (2d Dep’t 1985). “Unequivocally referable conduct is conduct which is inconsistent with any

other explanation.” Matter of Zelouf, 183 A.D.3d 900, 902 (2d Dep’t 2020). The conduct “alone

must be unintelligible or at least extraordinary” absent any agreement. See Klein, 108 A.D.2d at

348. “What is done must itself supply the key to what is promised. It is not enough that what is

promised may give significance to what is done.” Burns v. McCormick, 233 N.Y. 230, 232 (1922).

In other words, the conduct must be “explainable only with reference to the oral agreement.”

Roman Cath. Church of the Epiphany v. City of New York, 183 A.D.3d 775, 776 (2d Dep’t 2020).

The Court’s April 10, 2023 Order dismissing Defendants’ motion to dismiss (see Exhibit

H, NYSCEF Doc. No. 74) (“April Order1”) held that Plaintiff’s SAC sufficiently pleaded the

1
It should be noted that the April Order and the law of the case doctrine does not bar Defendants’ arguments herein.
This doctrine “operates to foreclose re-examination of a legal questions, absent a showing of subsequent evidence or
change of law, but the doctrine only applies to legal determinations that were necessarily resolved on the merits in a
prior decision”. See Strujan v. Glencord Bldg. Corp., 137 A.D.3d 1252 (2d Dep’t 2016); see also Ramanathan v.
Aharon, 109 A.D.3d 529 (2d Dep’t 2013) (“law of the case doctrine applies only to legal determinations that were
necessarily resolved on the merits in a prior decision and to the same questions presented in the same case”). The
April Order was rendered due to Defendants motion to dismiss. It is well settled that a motion to dismiss is not based
on the merits of the matter but rather on the pleadings. See Abdelfattah v. Najar, 173 A.D. 3d 657, 658 (2d Dep’t
2019) (“an order entered upon a party’s default in appearing to oppose a motion to dismiss is not a determination on
the merits”). Furthermore, the doctrine of the law of the case is inapplicable “where ….a summary judgment motion
follows a motion to dismiss, ‘since the scope of review on the two motions differs; the motion to dismiss examines
the sufficiently of the pleadings, whereas summary judgment examines the sufficiency of the evidence underlying
the pleadings.” See Friedman v. Connecticut General Life Ins. Co., 30 A.D.3d 349 (1 Dep’t 2006); see also
Thompson v. Lamprecht Transport, 39 A.D.3d 846 (2d Dep’t 2007) (“contrary to the plaintiff’s contention, the
court’s denial of that branch of the defendants’ initial motion pursuant to CPLR 3211(a)(7) to dismiss the complaint,
which was addressed to the sufficiency of the pleadings, did not establish the law of the case for the purpose of their

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partial performance exception to the SOF and therefore, the SAC survived the standard on a motion

to dismiss based on allegations concerning the Loans being “memorialized” in Weisel’s attorney

escrow accounts2. See SAC ¶¶ 21, 28-29, 35, 40, 55-56. Regardless of this “memorialization”

allegation, the SOF is only satisfied by a writing which must contain substantially the whole

agreement, and all its material terms and conditions, so that one reading it can understand from

such document what the agreement is. See Klein v. Jamor Purveyora, Inc., 108 A.D.2d 344 (2d

Dep’t 1985). While it is true that an agreement may be pieced together from separate writings,

those writings must relate to one another either expressly or by the internal evidence of subject

matter and occasion.” Id. Even if accepted as true, the escrow ledgers do not and would not contain

the alleged loan agreement, any of the material terms or conditions, nor does it reference alleged

oral loan agreement.

D. There is no genuine issue of fact that the loan agreement could not have been
completed within one year

Lastly, contrary to the Court’s April Order the loan agreement could not have been

completed within one year and falls within the SOF pursuant to New York General Obligations

Law §5-701(a)(1). See N.Y. Gen. Oblig. Law §5-701(a)(1); see also Pritsker v. Soyferman, 275

A.D.2d 738, 738 (2d Dep’t 2000).

As alleged by Plaintiff, the terms of the loan agreement (see SAC ¶38) required Defendants

to pay money back more than one year after entering into this oral agreement and also over the

course of more than one year. Furthermore, the maturity date of the agreement was 2017 and there

subsequent motion pursuant to CPLR 3212 for summary judgment, which was addressed for the sufficiency of the
evidence”). Therefore, as the motion to dismiss was not a determination on the merits, the law of the case doctrine is
inapplicable.
2 Non-party Abraham Weisel, Esq. appeared for his so-ordered deposition on March 26, 2024 wherein he testified

that the alleged Loans are not “memorialized” in his escrow account ledger or Quickbooks nor are there any
notations of any alleged Loans in his escrow account ledger or Quickbooks, in complete contradiction to the
allegations in Plaintiff’s SAC. Defendants have not received a copy of Mr. Weisel’s deposition transcript prior to
the Court ordered summary judgment deadline.

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were no terms indicating that at any time the unpaid amount would be due. It is well settled that

payment installments by its very definition cannot be performed within one year. See Pritsker, 275

A.D.2d at 738 (“According to the plaintiffs' own allegations, the parties' oral agreement required

the defendants to repay the “loan” at a rate of $2,000 per month, including interest. By its terms,

the agreement could not be performed within one year. Consequently, this action to recover the

unpaid balance of the alleged loan is barred by the Statute of Frauds”); see also A. Aversa

Brokerage, Inc. v. Honig Ins. Agency, Inc., 249 A.D.2d 345, 346 (2d Dep’t 1998) (“The alleged

oral agreement here required the balance of the purchase price to be paid in 30 monthly

installments, and, therefore, it could not be performed within one year”); Bayside Health Club,

Inc. v. Weidel, 170 A.D.2d 474, 474 (2d Dep’t 1991) (“The alleged oral agreement included a

provision for the terms of payment of the purchase price, which provision stipulated that the

plaintiffs would take back a purchase money mortgage, at nine percent interest, over a four- year

term. Because the oral agreement could not be performed within one year from its making, it

became subject to the Statute of Frauds”); Msc Claim Services, Inc. v. Gajano, No. 30294300,

2000 WL 35928262 (N.Y. Sur. Jun. 2000) (“As the alleged oral

Case Info

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Kings NJTRP Track Judge’s New Case

Case No.

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Document Filed Date

May 09, 2024

Case Filing Date

August 03, 2021

County

Parties

Barry Hersko Plaintiff
CARUSO, ANDREA JILL Attorney for the Defendant
COHN, RACHEL LINDSAY Attorney for the Plaintiff
DISTEFANO, SABRINA Attorney for the Defendant
FLANDERS, CRAIG MATTHEW Attorney for the Plaintiff
GENOVESI, ANTHONY J Attorney for the Defendant
MANDELL, JILL L Attorney for the Plaintiff
Morris Hersko Defendant
Sara G Hersko Defendant
SHVARTSMAN, ABIGAIL ESTHER Attorney for the Plaintiff
WIENER, MELANIE IRINA Attorney for the Defendant
CRAIG MOKHIBER Attorney
FRANCESCA ANNUNZIATA-ASLLANI Attorney
SHMUEL TAUB Attorney
SAMUEL LEVY Attorney
ABRAHAM WEISEL Attorney

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Exhibit,Appendix: Barry Hersko v. Morris Hersko, Sara G Hersko

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