Preview
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
- --- ---------- --- - ------- --------- -------- --- - X
DOUGLAS PICK, as Assignee for the Benefit of : Index No. 523453/2020
Creditors of KAMIN HEALTH WILLIAMSBURG LLC,
: AFFIRMATION IN SUPPORT
Plaintiff, OF CPLR 3211 MOTION
- against - : TO DISMISS COMPLAINT
LEVINE & ASSOCIATES, P.C., MECHON RAV :
SHALOM and RABBI SHLOMO HALPERN,
:
Defendants.
_ .- - _ .---------------------- ----------------- - X
MICHAEL LEVINE, an attorney duly admitted to practice law in the Courts of the State
of New York, affirms the truth of the following, under the penalty of perjury and pursuant to CPLR
Rule 2106:
1. I am a member of Levine & Associates, P.C., counsel to the Defendants in the within
action, and, as such, am fully familiar with all of the facts and circumstances as are hereinafter set
forth. Levine & Associates, P.C. is also a direct Defendant in the within action.
Defendants'
2. This Affirmation is submitted in support of the motion for an Order , (1)
pursuant to §§ 3211(a)(1) and (3) of the Civil Practice Law and Rules of the State of New York
("CPLR"), (i)dismissing the within action on the ground that Plaintiff lacks standing to bring the
same, or, alternatively (ii) staying the within action pending a determination of by an existing
arbitration panel as to whether Plaintiff's purported assignee had authority to make the assignment
upon which Plaintiff claims standing to bring the within action, (2) pursuant to CPLR § 3211(1)
dismissing the within action on the ground that a defense is founded upon documentary evidence,
and (3) awarding to Defendants such other, further and different relief as may be just, proper and
equitable.
1 of 15
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
THE FACTUAL BACKGROUNDI
I. The Dispute, the Arbitration and the Restraining/In junction Orders
3. On September 17, 2018, non-party Pinchas Halperin LLC ("PHL", owned by
the individual Pinchas Halpern ["Halpern"]) and U.C. Management LLC ("UCM", owned by the
individual Yitzchok Kaminetzky ["Kaminetzky"]) caused Kamin Health Williamsburg LLC
("KHW") to be formed pursuant to the provisions of New York's Limited Liability Company Law.
The ownership of KHW was 50% Pinchas Halperin and 50% U.C. Management LLC.
4. From the time of its formation, and to date, KHW has been in the business of providing
management services for an urgent care facility located at 70 Lee Avenue, Brooklyn, New York,
which facility provides medical services and care for non-life threatening and/or temporary injuries
"walk-in"
and illnesses and other medical conditions on a basis.
5. On or about October 4, 2018, PHL and UCM entered into a written Operating
Agreement (the "Operating Agreement") providing for the management and affairs of Kamin
Health. A copy of the Operating Agreement is annexed hereto and labeled Exhibit "1".
Kaminstzky was designated as the manager (on behalf of UCM) of KHW [§ 7]. The Operating
Agreement required that all funds of KHW be deposited solely into a bank account in the name of
KHW on which PHL's representative was required to be one of the signatories. Withdrawals could
be made only in the regular course of business of KHW. [§ 11].
6. The Operating Agreement further provided that, in the event that any dispute arose
among the parties, the same would be determined by a Rabbinical Court and "judgment upon the
award rendered or regarding enforcement of the Rabbinical Court's rulings may be entered or
1
These facts are taken from various Affidavits submitted in connection with a prior action between
Pinchas Halperin LLC and U.C. Management LLC, the Members of Kamin Health of
Williamsburg LLC, the purported assignor to Plaintiff Douglas Pick.
2
2 of 15
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
..."
enforced, as the case may be, in the Courts located in the State of New York, County of Kings
[§ 17].
7. Finally, the Operating Agreement further provided that, in the event that Kaminetzky
commingled funds belonging to KHW with any funds belonging to any other entity, Kaminetzky
" 7].2
would removal as Manager of KHW "upon motion of PHL. [§
8. In or about July of 2019, PHL discovered that Kaminetzky had been causing funds
belonging to Kamin Health to be deposited into a bank account not in the sole name of KHL, and
not one where PHL's representative was a signatory, but rather Kaminetzky was causing KHL
funds to be deposited into a comingled account that Kaminetzky used for other businesses of his.
9. As a result, on July 12, 2019, PHL caused to be delivered to Kaminetzky and UCM a
notice that, upon the motion of Petitioner PHL, Respondent UCM had been removed as Manager
of KHW. A copy of the said Notice of Removal is annexed hereto and labeled Exbibit "2".
10. On July 16, 2019, Kaminetzky responded by sending a demand for arbitration (Exhibit
"3"
annexed hereto) to Halperin pursuant to the Operating Agreement, stating as follows:
Per our Operating Agreement #17, any and all controversy in any way relating to
or arising under or resulting from this agreement shall, in accord with Jewish law
be submitted for arbitration to Beis Hora'ah Eitz Chaim in Brooklyn NY under the
leadership of Harav Chaim Kohn.
2 - -
The reason for that provision inÔrted at the insistence of PHL was because Kaminetzky had
other urgent care facilities with other partners/investors in different locations: Boro Park Urgent
Care, Crown Heights Urgent Care and Union Medical Urgent Care (in Monsey). PHL, which was
agreeing to invest up to $500,000 into KHW, had nothing to do with those other entities and wanted
to make sure that funds received by KHW would not be diverted to any of the entities owning or
operating those other, separate facilities. So as to insure that Kaminetzky could not block that
removal, the Operating Agreement provided that he would be removed as Manager on mere
"motion"
by PHL, and not by any subsequent voting requirement.
3
3 of 15
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
11. On July 24, 2019, the Rabbinical Court designated by Kaminetzky issued a formal
invitation to Halperin, stating: "[a]s per your request for a formal invitation to adjudicate at our
din,3 Torah4
beis Mr. Kaminetzky is requesting a Din to discuss the management and ownership
agreement."
of the company called Kamin Health Williamsburg LLC and itsoperating A copy of
the arbitration invitation is annexed hereto and labeled Exhibit "4". On July 29, 2019, Halperin
(through counsel) accepted the invitation to arbitrate before the beis din designated by
Kaminetzky. A copy of that acceptance is annexed hereto and labeled Exhibit "5". The parties
subsequently signed and delivered a separate arbitration agreement (dated July 23, 2019, the date
that Kaminetzky requested the Beth Din to commence the din Torah) agreeing to arbitrate before
Rabbi Kohn, the leader of the panel designated in the Operating Agreement of KHW. A copy of
the fully executed arbitration agreement is annexed hereto and labeled Exhibit "6".
12. Thereafter, and for the next approximate two months, Kaminetzky and UC
Management continuously refused to abide by numerous dates scheduled by the Beis Din. Finally,
in early September, Halpern requested permission from the Beis Din to file a motion for injunctive
relief before this Court. On September 16, 2019, the Beis Din sent an e-mail to the parties stating,
in relevant part, that:
Mr. Kaminetzky and Counsel,
This matter has been delayed continuously since late July. Although the other party
requested permission to place an injunction in court, the beis din did not grant this
until now in order to give Mr. Kaminetzky opportunity to represent himself.
However, ifa date no later than the last week of October/Early Cheshvan cannot be
confirmed by this Wednesday, beis din will be forced to consider the Halperin's
request.
3 din"
A "beis is a Jewish Rabbinical Court viewed under New York law as a recognized
arbitration panel.
4 Torah"
A "Din is a formal hearing before a Jewish Court; the procedure of a Din Torah
is recognized under New York law as a valid arbitration proceeding.
4
4 of 15
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
13. A copy of that notice from the Beis Din is annexed hereto and labeled Exhibit "8".
Kaminetzky continuing to refuse to abide by the Beis Din's scheduling orders, and the Beis Din
issued a notice to the parties on September 18, 2019, granting permission to Petitioner to "file an
injunction in court on the aforementioned funds ["all funds that are related to Kamin Health
Torah."
Williamsburg LLC"] for the pendency of this din A copy of the said notice is annexed
hereto and labeled Exhibit "9".
14. Two days later, on September 20, 2019, the Beth Din issued a formal "Award and
Relief."
Order granting Injunctive A copy of the same is annexed hereto and labeled Exhibit "10".
The same provided, in relevant part, as follows (emphasis in original):
ORDERED that, for the pendency of this din Torah, all funds received by
any agent of Kamin Health Williamsburg LLC must be deposited only into the
operating account of Kamin Health Williamsburg LLC and not comingled with
funds belonging to any other entity, and such funds shall be used only for the
business purposes of Kamin Health Williamsburg LLC. Yitzchak Kaminetzky and
all persons operating through him or at his request or instruction, are hereby
restrained and enjoined, during the pendency of this din Torah from disobeying this
provision, or diverting funds, or using funds for any purpose other than the business
purposes of Kamin Health Williamsburg LLC, and all checks shall be issued and
LLC,5
signed only by the bookkeeper for Kamin Health Williamsburg and itis
further
ORDERED that this Decision and Order is intended to be an Interim Order
on the issues of the use and disposition by the parties of funds belonging to Kamin
Health Williamsburg LLC during the pendency of this din Torah, such that the
same may be confirmed by any court of competent jurisdiction pursuant the
provisions of New York Law, and the parties (or either of them) are granted
permission to immediately petition such court for such confirmation, or
alternatively, to petition for injunctive relief in aid of arbitration consistent with the
relief granted in this Order.
15. Despite the ruling and Award of the Beis Din, Kaminetzky and UCM continue to divert
funds from KHW and continued to write checks signed by persons other than the bookkeeper for
5
The bookkeeper for KHW was (and remains) Blini Gold.
5
5 of 15
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
KHW. Consequently, on September 27, 2019, PHL presented to this Court an Order to Show
Cause under Index No. 521021/2019 [the "Injunction Action"] seeking a preliminary injunction in
aid of arbitration to prohibit the diversion of KHW funds. This Court [Hon. Ken Sherman] issued
the said Order to Show Cause in the Injunction Action, and simultaneously issued a Temporary
Restraining Order which provided that:
Respondents U C Management LLC and Yitzchak Kaminetzky, and all persons
operating through either of them or at their request or instruction, are hereby
temporarily restrained from (i)diverting, dissipating or using any funds of Kamin
Health for any purposes other than the business purposes of Kamin Health; (ii)
depositing any funds of Kamin Health into any account other than the TD Bank
operating account of Kamin Health ending in 4683, and (iii)writing or issuing any
checks other than checks issued by Blini Gold, the bookkeeper of Kamin Health.
16. A copy of that TRO is annexed hereto and labeled exhibit "11". On December 6, 2019,
this Court [Hon. Wavny Toussaint] issued a Preliminary Injunction Order in the Injunction Action
which was entered on December 10, 2019 (the "Preliminary Injunction"). A copy of the same is
"12".6
annexed hereto and labeled Exhibit On December 14, 2019, a copy of the Preliminary
Defendants'
Injunction with notice of entry was served on the counsel (via NYSCEF and e-mail)
as well as on the Defendants directly (via next day Priority Mail). A copy of the Notice of Entry
with Affirmation of Service of the same, together with the Post Office proof of delivery to the
Respondents, is annexed hereto and collectively labeled Exhibit "13".
6
As can be seen, the Preliminary Injunction provided, inter alia, that "all funds received by any
agent of Kamin Health Williamsburg LLC must be deposited only into the TD Bank operating
account of Kamin Health Williamsburg LLC ending in 4683, and (ii)any checks of Kamin Health
Williamsburg LLC shall be issued and signed only by Blini Gold, the bookkeeper for Kamin
Health, and Respondents, and all other persons knowingly acting or operating through any of them
checks."
and receiving notice of this Order, are hereby enjoined from issuing any such
6
6 of 15
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
17. Thereafter, Kaminetzky and UCM completely ignored both Judge Sherman's
September 27, 2019 TRO, and Judge Toussaint's December 6, 2019 Preliminary Injunction Order,
diverting many hundreds of thousands of dollars of KHW funds from the bank account that this
Court specifically directed the same be deposited into, and disbursing those funds without KHW's
designated bookkeeper, Blini Gold issuing checks or authorizing the same.
18. Consequently, PHL brough a motion in the Injunction Action on May 15, 2020,
seeking to hold Kaminetzky, UCM and allthose acting in concert with them in contempt of Court.
Even after the filing of that motion, Kaminetzky and UCM continued to ignore the Court's
Preliminary Injunction Order and continued to divert funds from the bank account that the Court
directed the same to be deposited into.
19. On July 15, 2020, Judge Toussaint issued an order granting the contempt motion "to
..."
the extent of setting the matter down for a hearing on October 1, 2020 A copy of the same is
annexed hereto and labeled Exhibit "14". That hearing date was thereafter adjourned as a result
of the COVID-19 restrictions on live hearings and the Court has indicated that it will be
rescheduled as soon as the restrictions are lifted.
"Assienment"
H. The Purvorted by Kaminetzky in Violation of the Preliminary
In junction Order and the Operating Agrééiiisiit
20. Notwithstanding that (i)this Court's Injunction Order was in place and unainbiguously
prohibited funds belonging to KHW to be deposited anywhere other than in KHW's TD operating
7
7 of 15
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
account and disbursed only at the direction of Blini Gold, (ii) the Operating Agreement of KHW
business,7
prohibited any disposition of the assets of KHW other than in the ordinary course of
(iii) Kaminetzky had been ousted as manager of KHW months earlier, and (iv) the issue of the
management and ownership of KHW (and, thus, Kaminetzky's ability to act on behalf of that
entity) were already before an arbitration panel (Beth Din) for disposition, which panel had already
enjoined the depositing of any funds other than in KHW's TD operating account and disbursed
only at the direction of Blini Gold, on October 23, 2019 Kaminetzky (incredibly, while facing a
"assignment"
hearing on a contempt motion already), signed a purported of all of the funds and
assets of KHW to Plaintiff Douglas Pick ("Pick"). A copy of the purported Assignment is annexed
hereto and labeled exhibit "15".
21. The purported Assignment, in direct violation of this Court's Preliminary Injunction
Order, permitted Pick to received KHW funds in his own account and "sign the name of [KHW]
check" "collect" "hold"
to any which is payable to KHW, to all funds belonging to KHW, to the
7
The Operating Agreement [Exhi 1] provided (at Article 7) that (emphasis added):
Notwithstanding the above, the consent of the Members holding at least sixty-six
(66%) of the Membership Interest shall be required with respect to all decisions
affecting the substantive Business affairs and/or operations of the LLC, such as,
sale of the assets of the LLC out of the ordinary course of business; obtaining
financing; changing or adding to the principal place of business of the LLC;
addition of new members; designation of the LLC bank accounts; designation of
the LLC's accountants and the like.
Clearly, an assignment of all of the assets of KHW (i)affects the business affairs and operations
of the LLC, and (ii) constitutes a sale of the assets outside of the ordinary course of business. As
such, there is absolutely no question that doing the same required the consent of both Kaminetzky
and Halperin.
8
8 of 15
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
funds of KHW (bypassing the KHW TD Bank operating account), and to pay himself and others
signature).8
from those funds (bypassing the requirement for Blini Gold's
22. In the instant action, Pick seeks to further violate the Court's Preliminary Injunction
"recovering"
Order by funds that were paid to legitimate creditors by KHW and diverting the same
so.9
to Pick, even though he has no standing to do
THE INSTANT MOTION
I. The Instant Action Must be Dismissed Because a Prior Pending Arbitration
will Determine whether Kaminetzky had any Authority to Assign away the
Assets of Kamin Health of Williamsbure
23. As set forth above, four days after Kaminetzky was ousted as manager of KHW, he
initiated an arbitration proceeding by sending a demand for arbitration (Exhibit 3) to Halperin
which cited the arbitration provision in KHW's Operating Agreement and correctly asserted that
"any and all controversy in any way relating to or arising under or resulting from this [KHW
Operating] agreement shall, in accord with Jewish law be submitted for arbitration to Beis Hora'ah
Kohn."
Eitz Chaim in Brooklyn NY under the leadership of Harav Chaim The Beth Din's
subsequent invitation to Halperin stated that the arbitration controversy was "the management and
agreement"
ownership of the company called Kamin Health Williamsburg LLC and itsoperating
(Exhibit 4).
8
In his papers, Pick admitted that he was aware of this Court's Preliminary Injunction but,
nonetheless, ignored the same. A separate motion to hold Pick in contempt of court for his
intentional violation of that Order is being separately filed.
9
Although not relevant to the instant motion, it isbelieved that Pick was actually retained by a
"creditor's"
purported creditor of KHW so that the purported claim would not be contested. A
Demand was made on Pick to produce a copy of his retainer agreement; however he has refused
to do so.
9
9 of 15
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
24. In the separate arbitration agreement that the parties thereafter executed (which was
dated July 23, 2019) to proceed before the designated Beth Din, the broad scope of the arbitration
was described (in Kaminetzky's handwriting) as "The management and ownership of the
agreement"
Company called Kamin Health Williamsburg LLC and its operating (Exhibit 6).
25. With respect to Kaminetzky's authority to divert exercise control over, or divert any
funds of KHW, the arbitration panel has already enjoined him from diverting any funds of KHW
away from being deposited only into the TD Bank operating account of KHW and specifically
enjoined him from disbursing any of those funds to anyone (directing that only Blini Gold, KHW's
bookkeeper could do so). Thus, the issue of Kaminetzky's authority to act for KHW in nay
capacity, as well as the maññer in which assets of KHW could be disbursed, are clearly issues
presently extant before the arbitration panel and that panel has already made (at leasta preliminary)
determination on that issue.
"assignment"
26. Therefore, the determination of whether the purported of KHW's assets
from Kaminetzky to Pick was valid is an issue squarely before the arbitration panel at this time
and Kaminetzky has been enjoined by the arbitration panel from making such disposition of the
assets of KHW. Thus, until the arbitration panel determines what the Operating Agreement
general,10
permits regarding an assignment of KHW's assets in and what Kaminetzky's authority
As set forth above, the KHW Operating Agreement specifically provided that "the consent of
the Members holding at least sixty-six (66%) of the Membership Interest shall be required with
respect to all decisions affecting the substantive Business affairs and/or operations of the LLC,
..."
such as, sale of the assets of the LLC out of the ordinary course of business The alleged
Assignment Agreement of all of KHW's assets from Kaminetzky to Pick (Exhibit 15) purports to
over"
have "granted, bargained, sold, assigned, transferred and set all of the assets of KHW to Pick
(emphasis added). Clearly, that language required the majority vote of the Members of KHW,
which did not exist. However, in oral argument before the Court on his unsuccessful motion to
stay the Court's Preliminary Injunction Order, Pick took the position that another provision of the
"manager" "dissolve"
Operating Agreement - which granted to the of KHW the sole authority to
the company, permitted Kaminetzky to make the purported assignment to Pick. However (as
10
10 of 15
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
was (or was not) as of the date the purported Assignment to Pick was signed by Kaminetzky, Pick
has no authority to act on behalf of KHW and, therefore, no standing to commence or continue the
prosecution of the present Action before this Court.
27. Consequently, the instant action should be dismissed without prejudice to itsrefiling
in the extremely unlikely event that the arbitration panel determines that Kaminetzky had the
authority to assign the assets of KHW to anyone notwithstanding that he had been removed as
manager of KHW and that the Operating Agreement of KHW required a majority vote in order to
permit him to do so.
prejudice"
28. Alternatively, should the Court not be comfortable with an outright "without
dismissal of the instant action, at the very least the same should be stayed pending the outcome of
the pending arbitration.
"Assignment"
II. The Instant Action Must be Dismissed because the Puroorted to Pick
was in Violation of the Court's Preliminarv Iniunction Order and, there fore, Void
29. In the event that the Court does not dismiss or stay the instant action pending the
outcome of the extant arbitration proceeding, the Court itself should dismiss the same with
prejudice, given the irrefutable documentary record before this Court at this point. As set forth
above, this Court's Preliminary Injunction Order, aside from requiring that all funds of KHW be
used only for KHW busines purposes, specifically directed that all such funds(i) "must be
frivolous as that position is), the interpretation of the Operating Agreement, like the dismissal of
Kaminetzky as manager and his subsequent ability or inability to act in such capacity, are matters
specifically within the purview of the arbitration panel by virtue of both (i)the arbitration provision
in the Operating Agreement [requiring arbitration of "any and allcontroversy, claim, disputes, etc.
in any way related to, arising under, or resulting from this Agreement"), and (ii) the separate
arbitration agreement which grants to the panel the sole power to determine all issues "respecting
the management and ownership of [KHW]and itsoperating agreement"]. Thus, to the extent that
there is any (albeit imagined) ambiguity between two provisions of the Operating Agreement, the
same must be resolved by the arbitration panel and not by this Court.
11
11 of 15
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
deposited only into the TD Bank operating account of Kamin Health Williamsburg LLC ending in
4683, and (ii) that all disbursements from that account be made "only by Blini Gold, the
Health."
bookkeeper for Kamin Indeed, Kaminetzky "and all other persons knowingly acting or
through"
operating him were specifically enjoined from making any payments from KHW funds.
30. Kaminetzky's purported conveyance of ftmds from KHW to Pick, bypassing the TD
Bank account of KHW, and allowing funds to be transferred by persons (Kaminetzky and Pick)
other than Blini Gold was in specific and blatant violation of the Court's Preliminary injunction
Order."
As such, the purported conveyance was illegal and must be deemed void by this Court.
HL The Instant Action Must be Dismissed because Pick has no Standing
to Corisiricisce or Maintain this Action
A. No Majority Vote of KHW's Members Authorized the Assignment
of KHW's Assets, as Required by KHW's Operating Agreement
31. As set forth above, the Operating Agreement of KHW required that a majority of the
members of KHW must vote in favor of any decision "affecting the substantive business affairs
of"
and/or operations KHW. No such vote ever took place. Unquestionably, the decision to enter
"affects"
into a purported Agreement to assign away of all of the assets of KHW both the
H
Pick unquestionably understood that because he asked this Court to issue an Order to Show
Injunction."
Cause [Doc. No. 98] on his motion to "Stay Proceedings and Modify Preliminary The
"modification"
Pick sought was to "require that any and allfunds of [KHW] be delivered to [Pick]
[Pick]."
so as to be deposited into a segregated bank account under the exclusive control of Pick
also asked that this Court issue a temporary restraining order enjoining KHW's bookkeeper (Blini
Gold) from transferring any funds from the KHW TD Bank operating account this this Court had
previously ordered all such funds be deposited. Notwithstanding that the Court denied that request
for a TRO, Pick continued on his contemptuous course of conduct, demanding that third-parties
make payment of KHW funds to Pick personally. While that is the subject matter of the
accompanying motion to hold Pick in contempt of court, the salient point for the instant motion is
that Pick clearly recognized that any agreement for KHW funds to be deposited into his account
(or any account other than the TD Bank account designated by this Court) and/or disbursed by him
(or anyone other than Blini Gold) would be illegal because it would be in violation of an
enforceable Court Order (the Preliminary Injunction).
12
12 of 15
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020
affairs" "operations."
"substantive business of KHW as well as its Consequently, Kaminetzky's
uniliteral and ex parte attempt to make such a purported transfer is void ab initio because he did
not have the authority to do so. Pick, therefore, has absolutely no authority to act in any manner
with respect to the assets of KHW, including the commencement of an action (as the instant action
"recover"
purports to be) to funds that were paid to legitimate creditors of KHW.
32. Similarly, the Operating Agreement requires a majority vote of KHW's meñ1bers for
business."
a "sale of the assets of [KHW] out of the ordinary course of Unquestionably, the sale
of all of KHW's assets to Pick for no consideration is a tra
Preview
FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS - --- ---------- --- - ------- --------- -------- --- - X DOUGLAS PICK, as Assignee for the Benefit of : Index No. 523453/2020 Creditors of KAMIN HEALTH WILLIAMSBURG LLC, : AFFIRMATION IN SUPPORT Plaintiff, OF CPLR 3211 MOTION - against - : TO DISMISS COMPLAINT LEVINE & ASSOCIATES, P.C., MECHON RAV : SHALOM and RABBI SHLOMO HALPERN, : Defendants. _ .- - _ .---------------------- ----------------- - X MICHAEL LEVINE, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the truth of the following, under the penalty of perjury and pursuant to CPLR Rule 2106: 1. I am a member of Levine & Associates, P.C., counsel to the Defendants in the within action, and, as such, am fully familiar with all of the facts and circumstances as are hereinafter set forth. Levine & Associates, P.C. is also a direct Defendant in the within action. Defendants' 2. This Affirmation is submitted in support of the motion for an Order , (1) pursuant to §§ 3211(a)(1) and (3) of the Civil Practice Law and Rules of the State of New York ("CPLR"), (i)dismissing the within action on the ground that Plaintiff lacks standing to bring the same, or, alternatively (ii) staying the within action pending a determination of by an existing arbitration panel as to whether Plaintiff's purported assignee had authority to make the assignment upon which Plaintiff claims standing to bring the within action, (2) pursuant to CPLR § 3211(1) dismissing the within action on the ground that a defense is founded upon documentary evidence, and (3) awarding to Defendants such other, further and different relief as may be just, proper and equitable. 1 of 15 FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 THE FACTUAL BACKGROUNDI I. The Dispute, the Arbitration and the Restraining/In junction Orders 3. On September 17, 2018, non-party Pinchas Halperin LLC ("PHL", owned by the individual Pinchas Halpern ["Halpern"]) and U.C. Management LLC ("UCM", owned by the individual Yitzchok Kaminetzky ["Kaminetzky"]) caused Kamin Health Williamsburg LLC ("KHW") to be formed pursuant to the provisions of New York's Limited Liability Company Law. The ownership of KHW was 50% Pinchas Halperin and 50% U.C. Management LLC. 4. From the time of its formation, and to date, KHW has been in the business of providing management services for an urgent care facility located at 70 Lee Avenue, Brooklyn, New York, which facility provides medical services and care for non-life threatening and/or temporary injuries "walk-in" and illnesses and other medical conditions on a basis. 5. On or about October 4, 2018, PHL and UCM entered into a written Operating Agreement (the "Operating Agreement") providing for the management and affairs of Kamin Health. A copy of the Operating Agreement is annexed hereto and labeled Exhibit "1". Kaminstzky was designated as the manager (on behalf of UCM) of KHW [§ 7]. The Operating Agreement required that all funds of KHW be deposited solely into a bank account in the name of KHW on which PHL's representative was required to be one of the signatories. Withdrawals could be made only in the regular course of business of KHW. [§ 11]. 6. The Operating Agreement further provided that, in the event that any dispute arose among the parties, the same would be determined by a Rabbinical Court and "judgment upon the award rendered or regarding enforcement of the Rabbinical Court's rulings may be entered or 1 These facts are taken from various Affidavits submitted in connection with a prior action between Pinchas Halperin LLC and U.C. Management LLC, the Members of Kamin Health of Williamsburg LLC, the purported assignor to Plaintiff Douglas Pick. 2 2 of 15 FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 ..." enforced, as the case may be, in the Courts located in the State of New York, County of Kings [§ 17]. 7. Finally, the Operating Agreement further provided that, in the event that Kaminetzky commingled funds belonging to KHW with any funds belonging to any other entity, Kaminetzky " 7].2 would removal as Manager of KHW "upon motion of PHL. [§ 8. In or about July of 2019, PHL discovered that Kaminetzky had been causing funds belonging to Kamin Health to be deposited into a bank account not in the sole name of KHL, and not one where PHL's representative was a signatory, but rather Kaminetzky was causing KHL funds to be deposited into a comingled account that Kaminetzky used for other businesses of his. 9. As a result, on July 12, 2019, PHL caused to be delivered to Kaminetzky and UCM a notice that, upon the motion of Petitioner PHL, Respondent UCM had been removed as Manager of KHW. A copy of the said Notice of Removal is annexed hereto and labeled Exbibit "2". 10. On July 16, 2019, Kaminetzky responded by sending a demand for arbitration (Exhibit "3" annexed hereto) to Halperin pursuant to the Operating Agreement, stating as follows: Per our Operating Agreement #17, any and all controversy in any way relating to or arising under or resulting from this agreement shall, in accord with Jewish law be submitted for arbitration to Beis Hora'ah Eitz Chaim in Brooklyn NY under the leadership of Harav Chaim Kohn. 2 - - The reason for that provision inÔrted at the insistence of PHL was because Kaminetzky had other urgent care facilities with other partners/investors in different locations: Boro Park Urgent Care, Crown Heights Urgent Care and Union Medical Urgent Care (in Monsey). PHL, which was agreeing to invest up to $500,000 into KHW, had nothing to do with those other entities and wanted to make sure that funds received by KHW would not be diverted to any of the entities owning or operating those other, separate facilities. So as to insure that Kaminetzky could not block that removal, the Operating Agreement provided that he would be removed as Manager on mere "motion" by PHL, and not by any subsequent voting requirement. 3 3 of 15 FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 11. On July 24, 2019, the Rabbinical Court designated by Kaminetzky issued a formal invitation to Halperin, stating: "[a]s per your request for a formal invitation to adjudicate at our din,3 Torah4 beis Mr. Kaminetzky is requesting a Din to discuss the management and ownership agreement." of the company called Kamin Health Williamsburg LLC and itsoperating A copy of the arbitration invitation is annexed hereto and labeled Exhibit "4". On July 29, 2019, Halperin (through counsel) accepted the invitation to arbitrate before the beis din designated by Kaminetzky. A copy of that acceptance is annexed hereto and labeled Exhibit "5". The parties subsequently signed and delivered a separate arbitration agreement (dated July 23, 2019, the date that Kaminetzky requested the Beth Din to commence the din Torah) agreeing to arbitrate before Rabbi Kohn, the leader of the panel designated in the Operating Agreement of KHW. A copy of the fully executed arbitration agreement is annexed hereto and labeled Exhibit "6". 12. Thereafter, and for the next approximate two months, Kaminetzky and UC Management continuously refused to abide by numerous dates scheduled by the Beis Din. Finally, in early September, Halpern requested permission from the Beis Din to file a motion for injunctive relief before this Court. On September 16, 2019, the Beis Din sent an e-mail to the parties stating, in relevant part, that: Mr. Kaminetzky and Counsel, This matter has been delayed continuously since late July. Although the other party requested permission to place an injunction in court, the beis din did not grant this until now in order to give Mr. Kaminetzky opportunity to represent himself. However, ifa date no later than the last week of October/Early Cheshvan cannot be confirmed by this Wednesday, beis din will be forced to consider the Halperin's request. 3 din" A "beis is a Jewish Rabbinical Court viewed under New York law as a recognized arbitration panel. 4 Torah" A "Din is a formal hearing before a Jewish Court; the procedure of a Din Torah is recognized under New York law as a valid arbitration proceeding. 4 4 of 15 FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 13. A copy of that notice from the Beis Din is annexed hereto and labeled Exhibit "8". Kaminetzky continuing to refuse to abide by the Beis Din's scheduling orders, and the Beis Din issued a notice to the parties on September 18, 2019, granting permission to Petitioner to "file an injunction in court on the aforementioned funds ["all funds that are related to Kamin Health Torah." Williamsburg LLC"] for the pendency of this din A copy of the said notice is annexed hereto and labeled Exhibit "9". 14. Two days later, on September 20, 2019, the Beth Din issued a formal "Award and Relief." Order granting Injunctive A copy of the same is annexed hereto and labeled Exhibit "10". The same provided, in relevant part, as follows (emphasis in original): ORDERED that, for the pendency of this din Torah, all funds received by any agent of Kamin Health Williamsburg LLC must be deposited only into the operating account of Kamin Health Williamsburg LLC and not comingled with funds belonging to any other entity, and such funds shall be used only for the business purposes of Kamin Health Williamsburg LLC. Yitzchak Kaminetzky and all persons operating through him or at his request or instruction, are hereby restrained and enjoined, during the pendency of this din Torah from disobeying this provision, or diverting funds, or using funds for any purpose other than the business purposes of Kamin Health Williamsburg LLC, and all checks shall be issued and LLC,5 signed only by the bookkeeper for Kamin Health Williamsburg and itis further ORDERED that this Decision and Order is intended to be an Interim Order on the issues of the use and disposition by the parties of funds belonging to Kamin Health Williamsburg LLC during the pendency of this din Torah, such that the same may be confirmed by any court of competent jurisdiction pursuant the provisions of New York Law, and the parties (or either of them) are granted permission to immediately petition such court for such confirmation, or alternatively, to petition for injunctive relief in aid of arbitration consistent with the relief granted in this Order. 15. Despite the ruling and Award of the Beis Din, Kaminetzky and UCM continue to divert funds from KHW and continued to write checks signed by persons other than the bookkeeper for 5 The bookkeeper for KHW was (and remains) Blini Gold. 5 5 of 15 FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 KHW. Consequently, on September 27, 2019, PHL presented to this Court an Order to Show Cause under Index No. 521021/2019 [the "Injunction Action"] seeking a preliminary injunction in aid of arbitration to prohibit the diversion of KHW funds. This Court [Hon. Ken Sherman] issued the said Order to Show Cause in the Injunction Action, and simultaneously issued a Temporary Restraining Order which provided that: Respondents U C Management LLC and Yitzchak Kaminetzky, and all persons operating through either of them or at their request or instruction, are hereby temporarily restrained from (i)diverting, dissipating or using any funds of Kamin Health for any purposes other than the business purposes of Kamin Health; (ii) depositing any funds of Kamin Health into any account other than the TD Bank operating account of Kamin Health ending in 4683, and (iii)writing or issuing any checks other than checks issued by Blini Gold, the bookkeeper of Kamin Health. 16. A copy of that TRO is annexed hereto and labeled exhibit "11". On December 6, 2019, this Court [Hon. Wavny Toussaint] issued a Preliminary Injunction Order in the Injunction Action which was entered on December 10, 2019 (the "Preliminary Injunction"). A copy of the same is "12".6 annexed hereto and labeled Exhibit On December 14, 2019, a copy of the Preliminary Defendants' Injunction with notice of entry was served on the counsel (via NYSCEF and e-mail) as well as on the Defendants directly (via next day Priority Mail). A copy of the Notice of Entry with Affirmation of Service of the same, together with the Post Office proof of delivery to the Respondents, is annexed hereto and collectively labeled Exhibit "13". 6 As can be seen, the Preliminary Injunction provided, inter alia, that "all funds received by any agent of Kamin Health Williamsburg LLC must be deposited only into the TD Bank operating account of Kamin Health Williamsburg LLC ending in 4683, and (ii)any checks of Kamin Health Williamsburg LLC shall be issued and signed only by Blini Gold, the bookkeeper for Kamin Health, and Respondents, and all other persons knowingly acting or operating through any of them checks." and receiving notice of this Order, are hereby enjoined from issuing any such 6 6 of 15 FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 17. Thereafter, Kaminetzky and UCM completely ignored both Judge Sherman's September 27, 2019 TRO, and Judge Toussaint's December 6, 2019 Preliminary Injunction Order, diverting many hundreds of thousands of dollars of KHW funds from the bank account that this Court specifically directed the same be deposited into, and disbursing those funds without KHW's designated bookkeeper, Blini Gold issuing checks or authorizing the same. 18. Consequently, PHL brough a motion in the Injunction Action on May 15, 2020, seeking to hold Kaminetzky, UCM and allthose acting in concert with them in contempt of Court. Even after the filing of that motion, Kaminetzky and UCM continued to ignore the Court's Preliminary Injunction Order and continued to divert funds from the bank account that the Court directed the same to be deposited into. 19. On July 15, 2020, Judge Toussaint issued an order granting the contempt motion "to ..." the extent of setting the matter down for a hearing on October 1, 2020 A copy of the same is annexed hereto and labeled Exhibit "14". That hearing date was thereafter adjourned as a result of the COVID-19 restrictions on live hearings and the Court has indicated that it will be rescheduled as soon as the restrictions are lifted. "Assienment" H. The Purvorted by Kaminetzky in Violation of the Preliminary In junction Order and the Operating Agrééiiisiit 20. Notwithstanding that (i)this Court's Injunction Order was in place and unainbiguously prohibited funds belonging to KHW to be deposited anywhere other than in KHW's TD operating 7 7 of 15 FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 account and disbursed only at the direction of Blini Gold, (ii) the Operating Agreement of KHW business,7 prohibited any disposition of the assets of KHW other than in the ordinary course of (iii) Kaminetzky had been ousted as manager of KHW months earlier, and (iv) the issue of the management and ownership of KHW (and, thus, Kaminetzky's ability to act on behalf of that entity) were already before an arbitration panel (Beth Din) for disposition, which panel had already enjoined the depositing of any funds other than in KHW's TD operating account and disbursed only at the direction of Blini Gold, on October 23, 2019 Kaminetzky (incredibly, while facing a "assignment" hearing on a contempt motion already), signed a purported of all of the funds and assets of KHW to Plaintiff Douglas Pick ("Pick"). A copy of the purported Assignment is annexed hereto and labeled exhibit "15". 21. The purported Assignment, in direct violation of this Court's Preliminary Injunction Order, permitted Pick to received KHW funds in his own account and "sign the name of [KHW] check" "collect" "hold" to any which is payable to KHW, to all funds belonging to KHW, to the 7 The Operating Agreement [Exhi 1] provided (at Article 7) that (emphasis added): Notwithstanding the above, the consent of the Members holding at least sixty-six (66%) of the Membership Interest shall be required with respect to all decisions affecting the substantive Business affairs and/or operations of the LLC, such as, sale of the assets of the LLC out of the ordinary course of business; obtaining financing; changing or adding to the principal place of business of the LLC; addition of new members; designation of the LLC bank accounts; designation of the LLC's accountants and the like. Clearly, an assignment of all of the assets of KHW (i)affects the business affairs and operations of the LLC, and (ii) constitutes a sale of the assets outside of the ordinary course of business. As such, there is absolutely no question that doing the same required the consent of both Kaminetzky and Halperin. 8 8 of 15 FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 funds of KHW (bypassing the KHW TD Bank operating account), and to pay himself and others signature).8 from those funds (bypassing the requirement for Blini Gold's 22. In the instant action, Pick seeks to further violate the Court's Preliminary Injunction "recovering" Order by funds that were paid to legitimate creditors by KHW and diverting the same so.9 to Pick, even though he has no standing to do THE INSTANT MOTION I. The Instant Action Must be Dismissed Because a Prior Pending Arbitration will Determine whether Kaminetzky had any Authority to Assign away the Assets of Kamin Health of Williamsbure 23. As set forth above, four days after Kaminetzky was ousted as manager of KHW, he initiated an arbitration proceeding by sending a demand for arbitration (Exhibit 3) to Halperin which cited the arbitration provision in KHW's Operating Agreement and correctly asserted that "any and all controversy in any way relating to or arising under or resulting from this [KHW Operating] agreement shall, in accord with Jewish law be submitted for arbitration to Beis Hora'ah Kohn." Eitz Chaim in Brooklyn NY under the leadership of Harav Chaim The Beth Din's subsequent invitation to Halperin stated that the arbitration controversy was "the management and agreement" ownership of the company called Kamin Health Williamsburg LLC and itsoperating (Exhibit 4). 8 In his papers, Pick admitted that he was aware of this Court's Preliminary Injunction but, nonetheless, ignored the same. A separate motion to hold Pick in contempt of court for his intentional violation of that Order is being separately filed. 9 Although not relevant to the instant motion, it isbelieved that Pick was actually retained by a "creditor's" purported creditor of KHW so that the purported claim would not be contested. A Demand was made on Pick to produce a copy of his retainer agreement; however he has refused to do so. 9 9 of 15 FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 24. In the separate arbitration agreement that the parties thereafter executed (which was dated July 23, 2019) to proceed before the designated Beth Din, the broad scope of the arbitration was described (in Kaminetzky's handwriting) as "The management and ownership of the agreement" Company called Kamin Health Williamsburg LLC and its operating (Exhibit 6). 25. With respect to Kaminetzky's authority to divert exercise control over, or divert any funds of KHW, the arbitration panel has already enjoined him from diverting any funds of KHW away from being deposited only into the TD Bank operating account of KHW and specifically enjoined him from disbursing any of those funds to anyone (directing that only Blini Gold, KHW's bookkeeper could do so). Thus, the issue of Kaminetzky's authority to act for KHW in nay capacity, as well as the maññer in which assets of KHW could be disbursed, are clearly issues presently extant before the arbitration panel and that panel has already made (at leasta preliminary) determination on that issue. "assignment" 26. Therefore, the determination of whether the purported of KHW's assets from Kaminetzky to Pick was valid is an issue squarely before the arbitration panel at this time and Kaminetzky has been enjoined by the arbitration panel from making such disposition of the assets of KHW. Thus, until the arbitration panel determines what the Operating Agreement general,10 permits regarding an assignment of KHW's assets in and what Kaminetzky's authority As set forth above, the KHW Operating Agreement specifically provided that "the consent of the Members holding at least sixty-six (66%) of the Membership Interest shall be required with respect to all decisions affecting the substantive Business affairs and/or operations of the LLC, ..." such as, sale of the assets of the LLC out of the ordinary course of business The alleged Assignment Agreement of all of KHW's assets from Kaminetzky to Pick (Exhibit 15) purports to over" have "granted, bargained, sold, assigned, transferred and set all of the assets of KHW to Pick (emphasis added). Clearly, that language required the majority vote of the Members of KHW, which did not exist. However, in oral argument before the Court on his unsuccessful motion to stay the Court's Preliminary Injunction Order, Pick took the position that another provision of the "manager" "dissolve" Operating Agreement - which granted to the of KHW the sole authority to the company, permitted Kaminetzky to make the purported assignment to Pick. However (as 10 10 of 15 FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 was (or was not) as of the date the purported Assignment to Pick was signed by Kaminetzky, Pick has no authority to act on behalf of KHW and, therefore, no standing to commence or continue the prosecution of the present Action before this Court. 27. Consequently, the instant action should be dismissed without prejudice to itsrefiling in the extremely unlikely event that the arbitration panel determines that Kaminetzky had the authority to assign the assets of KHW to anyone notwithstanding that he had been removed as manager of KHW and that the Operating Agreement of KHW required a majority vote in order to permit him to do so. prejudice" 28. Alternatively, should the Court not be comfortable with an outright "without dismissal of the instant action, at the very least the same should be stayed pending the outcome of the pending arbitration. "Assignment" II. The Instant Action Must be Dismissed because the Puroorted to Pick was in Violation of the Court's Preliminarv Iniunction Order and, there fore, Void 29. In the event that the Court does not dismiss or stay the instant action pending the outcome of the extant arbitration proceeding, the Court itself should dismiss the same with prejudice, given the irrefutable documentary record before this Court at this point. As set forth above, this Court's Preliminary Injunction Order, aside from requiring that all funds of KHW be used only for KHW busines purposes, specifically directed that all such funds(i) "must be frivolous as that position is), the interpretation of the Operating Agreement, like the dismissal of Kaminetzky as manager and his subsequent ability or inability to act in such capacity, are matters specifically within the purview of the arbitration panel by virtue of both (i)the arbitration provision in the Operating Agreement [requiring arbitration of "any and allcontroversy, claim, disputes, etc. in any way related to, arising under, or resulting from this Agreement"), and (ii) the separate arbitration agreement which grants to the panel the sole power to determine all issues "respecting the management and ownership of [KHW]and itsoperating agreement"]. Thus, to the extent that there is any (albeit imagined) ambiguity between two provisions of the Operating Agreement, the same must be resolved by the arbitration panel and not by this Court. 11 11 of 15 FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 deposited only into the TD Bank operating account of Kamin Health Williamsburg LLC ending in 4683, and (ii) that all disbursements from that account be made "only by Blini Gold, the Health." bookkeeper for Kamin Indeed, Kaminetzky "and all other persons knowingly acting or through" operating him were specifically enjoined from making any payments from KHW funds. 30. Kaminetzky's purported conveyance of ftmds from KHW to Pick, bypassing the TD Bank account of KHW, and allowing funds to be transferred by persons (Kaminetzky and Pick) other than Blini Gold was in specific and blatant violation of the Court's Preliminary injunction Order." As such, the purported conveyance was illegal and must be deemed void by this Court. HL The Instant Action Must be Dismissed because Pick has no Standing to Corisiricisce or Maintain this Action A. No Majority Vote of KHW's Members Authorized the Assignment of KHW's Assets, as Required by KHW's Operating Agreement 31. As set forth above, the Operating Agreement of KHW required that a majority of the members of KHW must vote in favor of any decision "affecting the substantive business affairs of" and/or operations KHW. No such vote ever took place. Unquestionably, the decision to enter "affects" into a purported Agreement to assign away of all of the assets of KHW both the H Pick unquestionably understood that because he asked this Court to issue an Order to Show Injunction." Cause [Doc. No. 98] on his motion to "Stay Proceedings and Modify Preliminary The "modification" Pick sought was to "require that any and allfunds of [KHW] be delivered to [Pick] [Pick]." so as to be deposited into a segregated bank account under the exclusive control of Pick also asked that this Court issue a temporary restraining order enjoining KHW's bookkeeper (Blini Gold) from transferring any funds from the KHW TD Bank operating account this this Court had previously ordered all such funds be deposited. Notwithstanding that the Court denied that request for a TRO, Pick continued on his contemptuous course of conduct, demanding that third-parties make payment of KHW funds to Pick personally. While that is the subject matter of the accompanying motion to hold Pick in contempt of court, the salient point for the instant motion is that Pick clearly recognized that any agreement for KHW funds to be deposited into his account (or any account other than the TD Bank account designated by this Court) and/or disbursed by him (or anyone other than Blini Gold) would be illegal because it would be in violation of an enforceable Court Order (the Preliminary Injunction). 12 12 of 15 FILED: KINGS COUNTY CLERK 12/21/2020 10:52 AM INDEX NO. 523453/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/21/2020 affairs" "operations." "substantive business of KHW as well as its Consequently, Kaminetzky's uniliteral and ex parte attempt to make such a purported transfer is void ab initio because he did not have the authority to do so. Pick, therefore, has absolutely no authority to act in any manner with respect to the assets of KHW, including the commencement of an action (as the instant action "recover" purports to be) to funds that were paid to legitimate creditors of KHW. 32. Similarly, the Operating Agreement requires a majority vote of KHW's meñ1bers for business." a "sale of the assets of [KHW] out of the ordinary course of Unquestionably, the sale of all of KHW's assets to Pick for no consideration is a tra