On December 20, 2018 a
Motion-Secondary
was filed
involving a dispute between
James Davis Ii,
Medisale, Inc,
and
Addy Source, Llc,
Azriel Inzelbuch
A K A David B. Frank,
Bryan Baker
D B A Baker Cap Funding, D B A Baker Capital Funding,
Gtr Source, Llc,
Influx Capital Group, Llc
A K A Influx Capital, Llc,
Jonathan Braun,
Michelle Gregg,
Rebar Capital, Llc,
Richmond Capital Group, Llc,
Robert Giardina,
Spg Advance, Llc,
Tsvi Davis
A K A Steven Davis,
Tzvi Reich
A K A Steve Reich,
Yes Capital Funding Group, Llc
D B A Yes Funding Services, Llc,
for Commercial - Other (Vacate Judgment)
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 04/02/2019 04:52 PM INDEX NO. 656346/2018
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 04/02/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
JAMES DAVIS II and MEDISALE, INC.,
Plaintiffs,
v. Index No. 656346/2018
RICHMOND CAPITAL GROUP, LLC; INFLUX
CAPITAL GROUP, LLC, a/k/a INFLUX CAPITAL,
LLC; GTR SOURCE, LLC; ADDY SOURCE, LLC; YES
CAPITAL FUNDING GROUP, LLC d/b/a YES
FUNDING SERVICES, LLC; JONATHAN BRAUN;
MICHELLE GREGG; TSVI REICH a/k/a STEVE
REICH; ROBERT GIARDINA; BRYAN BAKER d/b/a
BAKER CAP FUNDING d/b/a BAKER CAPITAL
FUNDING; REBAR CAPITAL, LLC; AZRIEL
INZELBUCH a/k/a DAVID B. FRANK; and TZVI
DAVIS a/k/a STEVEN DAVIS,
Defendants.
AFFIRMATION
STEVEN W. WELLS, under the penalties of perjury and pursuant to CPLR
2106, affirms:
1. I am Partner with the law firm of Hodgson Russ LLP, attorneys for Richmond
Capital Group, LLC, Michelle D. Gregg, and Robert Giardina (the "Richmond Defendants") in
the above captioned matter. As such, I am authorized to make this Affirmation and do so upon
my own personal knowledge gained during my representation of the Richmond Defendants as
well as
my review of all documents relevant to this dispute. If, however, a particular statement is
stated to be made upon information and belief, I believe that statement to be true but lack
sufficient information and/or documentation to make the statement with certainty at this time.
2. I
respectfully
submit this Affirmation in opposition to the Cross-Motion of James
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Davis II and Medisale, Inc. submitted in Opposition to Defendant, Jonathan Braun's Motion to
Dismiss the Complaint as against Mr. Braun (the "Braun Motion to Dismiss").
3. The Cross-Motion was commenced in response to the Braun Motion to Dismiss,
yet it seeks relief against the non-moving defendants, including the Richmond Defendants. It is
of cross-
well established that a party may not seek relief against a non-moving party by way a
motion. See Rubino v. 330 Madison Co., LLC, 150 A.D.3d 603 (1st Dept. 2017) ("Waldorf's
purported cross motion against appellants, nonmoving parties, was not a true cross motion ...")
(citation omitted); see also, Kershaw v. Hospital for Special Surgery, 114A.D.3d 75, 88 (1st
Dept. 2013) ("The rule is that a cross motion is an improper vehicle for seeking relief from a
nonmoving party."); CPLR § 2215 ("At least three days prior to the time at which the motion is
noticed to be heard ... a party may serve upon the moving party a notice of cross-motion
...."
demanding relief
4. The Cross-Motion seeks relief against the Richmond Defendants insofar as it
seeks to amend the Complaint and assert additional causes of action against the Richmond
"accelerated"
Defendants and to the extent that it seeks pre-joinder or discovery from the
Richmond Defendants. Accordingly, any relief sought against the Richmond Defendants in the
Cross-Motion must be denied and, if Plaintiffs want to pursue such relief, a separate motion must
be commenced against the Richmond Defendants.
5. In addition to the foregoing, Abraham S. Beinhorn, Esq., attorney
for the other
non-moving defendants, Influx Capital Group LLC, GTR Source, LLC, ADDY Source LLC,
TZVI Reich and TSVI Davis, in his Affirmation submitted in opposition to the Cross-Motion,
notes that Plaintiffs have failed to cite to law for the relief sought against the non-
properly any
"accelerated"
moving defendants, including the discovery. See Beinhorn Aff. at ¶ 15.
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6. Since the Richmond Defendants do not have a pending motion to dismiss, I
cannot oppose the Cross-Motion to the extent that it seeks leave to serve an amended complaint
on the same bases as Mr. Beinhorn. I can, however, oppose that part of the Cross-Motion to the
extent that it seeks to add allegations or causes of action against the Richmond Defendants based
upon the law cited above.
7. In sum, if the Plaintiffs want to seek relief against the Richmond Defendants, they
have to do so in a separate motion or in response to a motion filed by the Richmond Defendants.
Plaintiffs'
8. I would also note that counsel makes several conclusory, defamatory,
scandalous and prejudicial statements regarding some of the Richmond Defendants (and other
defendants). These claims are not appropriate for an attorney affirmation. Factual allegations
must come from an affidavit from an individual with personal knowledge of the facts asserted.
Conclusions of law must come from the Court.
9. Last, in an attempt to mislead the Court and attribute any alleged wrongful
"Defendants"
conduct against all defendants, Plaintiffs improperly interchange the word with the
name of the person or entity that allegedly engaged in the conduct thereby inferring that it is
conduct engaged in by all of the Defendants.
10. For these reasons, it is respectfully requested that the Cross-Motion be denied to
the extent that it seeks any relief against the Richmond Defendants.
Affirmed this 2nd day of April, 2019.
Steven W. Wells
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Preview
FILED: NEW YORK COUNTY CLERK 04/02/2019 04:52 PM INDEX NO. 656346/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 04/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JAMES DAVIS II and MEDISALE, INC., Plaintiffs, v. Index No. 656346/2018 RICHMOND CAPITAL GROUP, LLC; INFLUX CAPITAL GROUP, LLC, a/k/a INFLUX CAPITAL, LLC; GTR SOURCE, LLC; ADDY SOURCE, LLC; YES CAPITAL FUNDING GROUP, LLC d/b/a YES FUNDING SERVICES, LLC; JONATHAN BRAUN; MICHELLE GREGG; TSVI REICH a/k/a STEVE REICH; ROBERT GIARDINA; BRYAN BAKER d/b/a BAKER CAP FUNDING d/b/a BAKER CAPITAL FUNDING; REBAR CAPITAL, LLC; AZRIEL INZELBUCH a/k/a DAVID B. FRANK; and TZVI DAVIS a/k/a STEVEN DAVIS, Defendants. AFFIRMATION STEVEN W. WELLS, under the penalties of perjury and pursuant to CPLR 2106, affirms: 1. I am Partner with the law firm of Hodgson Russ LLP, attorneys for Richmond Capital Group, LLC, Michelle D. Gregg, and Robert Giardina (the "Richmond Defendants") in the above captioned matter. As such, I am authorized to make this Affirmation and do so upon my own personal knowledge gained during my representation of the Richmond Defendants as well as my review of all documents relevant to this dispute. If, however, a particular statement is stated to be made upon information and belief, I believe that statement to be true but lack sufficient information and/or documentation to make the statement with certainty at this time. 2. I respectfully submit this Affirmation in opposition to the Cross-Motion of James - - 1 1K(1AT)9On1 1 of 3 FILED: NEW YORK COUNTY CLERK 04/02/2019 04:52 PM INDEX NO. 656346/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 04/02/2019 Davis II and Medisale, Inc. submitted in Opposition to Defendant, Jonathan Braun's Motion to Dismiss the Complaint as against Mr. Braun (the "Braun Motion to Dismiss"). 3. The Cross-Motion was commenced in response to the Braun Motion to Dismiss, yet it seeks relief against the non-moving defendants, including the Richmond Defendants. It is of cross- well established that a party may not seek relief against a non-moving party by way a motion. See Rubino v. 330 Madison Co., LLC, 150 A.D.3d 603 (1st Dept. 2017) ("Waldorf's purported cross motion against appellants, nonmoving parties, was not a true cross motion ...") (citation omitted); see also, Kershaw v. Hospital for Special Surgery, 114A.D.3d 75, 88 (1st Dept. 2013) ("The rule is that a cross motion is an improper vehicle for seeking relief from a nonmoving party."); CPLR § 2215 ("At least three days prior to the time at which the motion is noticed to be heard ... a party may serve upon the moving party a notice of cross-motion ...." demanding relief 4. The Cross-Motion seeks relief against the Richmond Defendants insofar as it seeks to amend the Complaint and assert additional causes of action against the Richmond "accelerated" Defendants and to the extent that it seeks pre-joinder or discovery from the Richmond Defendants. Accordingly, any relief sought against the Richmond Defendants in the Cross-Motion must be denied and, if Plaintiffs want to pursue such relief, a separate motion must be commenced against the Richmond Defendants. 5. In addition to the foregoing, Abraham S. Beinhorn, Esq., attorney for the other non-moving defendants, Influx Capital Group LLC, GTR Source, LLC, ADDY Source LLC, TZVI Reich and TSVI Davis, in his Affirmation submitted in opposition to the Cross-Motion, notes that Plaintiffs have failed to cite to law for the relief sought against the non- properly any "accelerated" moving defendants, including the discovery. See Beinhorn Aff. at ¶ 15. - 2 - 1MA T)R091 2 of 3 FILED: NEW YORK COUNTY CLERK 04/02/2019 04:52 PM INDEX NO. 656346/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 04/02/2019 6. Since the Richmond Defendants do not have a pending motion to dismiss, I cannot oppose the Cross-Motion to the extent that it seeks leave to serve an amended complaint on the same bases as Mr. Beinhorn. I can, however, oppose that part of the Cross-Motion to the extent that it seeks to add allegations or causes of action against the Richmond Defendants based upon the law cited above. 7. In sum, if the Plaintiffs want to seek relief against the Richmond Defendants, they have to do so in a separate motion or in response to a motion filed by the Richmond Defendants. Plaintiffs' 8. I would also note that counsel makes several conclusory, defamatory, scandalous and prejudicial statements regarding some of the Richmond Defendants (and other defendants). These claims are not appropriate for an attorney affirmation. Factual allegations must come from an affidavit from an individual with personal knowledge of the facts asserted. Conclusions of law must come from the Court. 9. Last, in an attempt to mislead the Court and attribute any alleged wrongful "Defendants" conduct against all defendants, Plaintiffs improperly interchange the word with the name of the person or entity that allegedly engaged in the conduct thereby inferring that it is conduct engaged in by all of the Defendants. 10. For these reasons, it is respectfully requested that the Cross-Motion be denied to the extent that it seeks any relief against the Richmond Defendants. Affirmed this 2nd day of April, 2019. Steven W. Wells - 3 - 1(AA U9Qu1 3 of 3