458 E. 25th St. Invs. LLC v. Sinay

2024 NY Slip Op 33874(U)

• Court: New York Supreme Court, Kings County
• Decided: October 29, 2024
• Docket: Index No. 514161/2023
• Status: Unpublished

Opinion

458 E. 25th St. Invs. LLC v Sinay 2024 NY Slip Op 33874(U) October 29, 2024 Supreme Court, Kings County Docket Number: Index No. 514161/2023 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 10/29/2024 01:26 PM INDEX NO. 514161/2023 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 10/29/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 ------ -------- - -- ----- -.-- ------- X 45-ff EAST 25th STREET INVESTORS LLC, SHLOIME GOLDSTEIN a/k/a SHLOMO ELIEZER GOLDSTEIN, individually and oh behalf bf FLATBUSH H6LbINGS 17 LLC AND FLATBUSH HOLDINGg 18 LLC~ Plaintiffs Decision an~ order

- against - Index No. 514161/2023

SHLOMO'.SINAY a/k/a SHLOMO ABRAHAM SINAI, E25 LLC, AJ E25 LLC, "JOHN DOE" and "JANE bQE/1 1-10, the names being fictitious as their true names are unknown and are intended to be the owners, officers, directors, shareholders and/or members of defendants E25 LLG, AJ E25 LLC, who:se names are currently unknown to Plaintiffs but will be discovered during the cpurse of discovery in this action, Defendants, October 29, 2024 ----- _- --- ----- -------------- - ----- - ~ Motion Seq. #4 PRESENT: HON. LEON RUCHELSMAN

The plaintiffs have moved pursllant to CPLR §2221 seeking to

reargue a decision and order dated August 1, 2024 which granted

defendant's rnotibn to stay the action pending arbitration. The

defendants oppose the motion. Papers were submitted by the

parties and after reviewing all the argmnents this court now

makes the following determination.

As recorded in the prior order, the plaintiff Goldstein and

defendant Sinay are members of Plaintiffs Flatbush Holdings 17

LLC and flatbush Holdings 18 _LLC. These _entities. were

established to acqµire and dl;;'!velop property located a:t 458 East

25th Street in Kings county. The amended. complaint alleges the defendant Sinay bo.rr.owed funds from investors including non-party

Abraham Joseph, and piedgecl his interests in the. entities as

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co11atera1 for the loans in violation of the membership agreements of the entities. The verified com.plaint further

alleges the defendant diverted irtcdme due to the entities in

efforts to pay off these loans in violatiqn of the membership

q.greements and the mortgage obtained. Specifically, the verified

complaint alleges the defendant Sinay transferred four

condominium units to defendant E25 LLC and three condominium

units to defendant ·AJ E25 LLC. Both of these entities were owned

by non--'party Joseph who ha:s since passed away.

As noted, although th_e plaintiff and the defendant agreed to

proceed in arbitration this action was commenced td preserve· the

plaintiff's rights following the improper transfers alleged.

Ih the prior order the court :stayed this a,ctioh pending

further proceedings in arbitration pursuant to ah arbitration

agreement between the plaintiff Goldstein and defendant Sinay.

The court held that although there was no arbitration agreement

with Joseph or- his entiti~s the ~laims of Joseph are int~rtwined

with those of Sinay and that arbitration is the best foruin to

resolve these issues. The plaintiffs have moved seeking to

reargu-e that determination. As noted the motion is opposed .

.Conclusions bf Law

A motion to reargue may be granted upon the showing that

th.e c.eurt overl.ooked or misapprepen,ded the facts or · law or for

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·-some·. other reason mistakenly. arr.i;v,ed at its earli~r· deGision

(Bethel spririgv~l~ Nutsing Home Inc., v. Gleason, 218 AD3d 724,

192 NYS3d .692 [2d Dept., 2023]). Thus, the party must

demon.strate that ·the court o.verJoo"ked some po.int qf law_ or fact

and consequently made a decision in error.

In the prior decision the c.ourt held that since the_ parties

agreed to participate- in arbitration and the c.laims aga_inst

Jo,$eph are connected to the Claims against Sin:ay the ar;bitratibri

should inC-lude Joseph a.s well. The cqurt f µ ..r;.tlier held that any

c;1.rguments _1:l.rbitration. .:j_s th_e inc_orrect forum s.hou1d be raised

there.. The court also noted that comme·hcing this ·action against

·Josepri when an o·hgoing arbi traticJn was t.akirn;1 pla-<:;:e- coulq be

considered impermissibl e fo.1;1;1m shopping. Upon reargument the

plain.tiff has f.a·iled to rais·e any issue wher.ein the- cour.:t, er:r~d

irt its conclusions. .essent.:Lally, the pl_aint:.i_f f d_oe.s not wish to

proceed. in.arbitratio: q. against Joseph. The court noted :that

-while no arbitration a.9reeni.ent has been entere.q i.nto with Jo~_eph

i t is surely imp:r::oper to engage in arbitration with Sinay and n_ot with Joseph ·who in ali ·sense·s is the ex.tension of Sinay

.cqns_id_ering the -~_acts ·of th.is ca.se. While Sinay has not moved

seeking to. dismis.s this action on the grounds an arbitration

cilready exists, surely Jmrnhp' s motion in this regard must l::,i.e

conside.ted since it wili be impossible to adjudi_cate claims

a.gainst Joseph without als.o implidat:..irig Sinay as well.

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Therefore, the claims against both Sinay and Joseph contain such

overlap that they must proceed in the same forum,

Consequently, the motion seeking reargument is denied,

So ordered,

ENTER:

DATED: October 29; 2024 Brooklyn N.Y. Hon. /Leon Ruchelsmarl. JSC

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