Brach v. Oxford Fin. LLC

2025 NY Slip Op 34404(U)

• Court: New York Supreme Court, Kings County
• Decided: November 17, 2025
• Docket: Index No. 532863/2021
• Status: Unpublished

Opinion

Brach v Oxford Fin. LLC 2025 NY Slip Op 34404(U) November 17, 2025 Supreme Court, Kings County Docket Number: Index No. 532863/2021 Judge: Reginald A. Boddie 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 11/19/2025 10:40 AM] INDEX NO. 532863/2021 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 11/19/2025

At an IAS Commercial Part 12 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Borough of Brooklyn, City and State of New York on the 17th day of November 202 5.

PRESENT: Honorable Reginald A. Boddie Justice, Supreme Court ----------------------------------------------------------------------x

ZIGMOND BRACH,

Plaintiff, Index No. 532863/202 l

-against- Cal. 5-6 MS 2-3

OXFORD FINANCE LLC, Decision and Order

Defendant.

-----------------------------------------------------------------------x The following e-filed papers read herein: NYSCEF Doc Nos. MS2 51-73, 110-127, 133-137 MS3 74-108, 128-132

Defendant's motion for summary judgment (Motion Sequence 2) and plaintiffs motion for

summary judgment (Motion Sequence 3) are decided as follows:

Background

This action arises out of defendant Oxford Finance LLC's alleged failure to reimburse

plaintiff Zigmond Brach for approximately $401,616.68 in advances he made to cover operating

shortfalls at Grosvenor Health Center ("Grosvenor"), after defendant had promised to repay those

funds as part of plaintiffs "Break-up Fee" when it credit-bid and acquired the assets at an August

2018 auction. Plaintiff asserts claims for breach of contract, fraud, and unjust enrichment arising

from defendant's alleged refusal to honor that commitment.

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Defendant moves for summary judgment seeking dismissal of the complaint in its entirety

with prejudice, arguing that the undisputed evidence shows that all three of plaintiffs claims fail

as a matter of law. Defendant contends that there was never an enforceable agreement for it to

reimburse plaintiff's Grosvenor advances; instead, there was only a clear, documented agreement

to reimburse advances to Woodbriar Health Center (''Woodbriar") as a § 503(b) break-up fee in

the bankruptcy, and that the July 13, 2018 email plaintiff relied upon was at most an unenforceable

"agreement to agree" whose conditions were never satisfied. Defendamt further argues that the

fraud claim has no factual basis because there was no false promise or justifiable reliance,

especially when contrasted with the explicit written commitment for Woodbriar but not for

Grosvenor, and that the unjust enrichment claim fails because plaintiff's advances to Grosvenor

primarily benefitted himself as an owner by keeping the facility operating, with any benefit to

Oxford being incidental and not at plaintiffs '"expense."

In opposition, plaintiff argues that there was a clear and enforceable agreement under

which defendant promised to reimburse him for all operating advances made to both the Woodbriar

and Grosvenor nursing homes, that defendant confirmed this commitment in writing, and that

defendant's later refusal to repay the Grosvenor advances was a breach of that agreement. Plaintiff

further contends that even if defendant now denies any contract, its assurances were fraudulent

since they were made to induce him to advance funds defendant otherwise would have had to

supply itself, and that defendant was unjustly enriched by benefiting from those emergency

payments. Plaintiff contends that both facilities were treated as a single sale transaction. that

defendant's conditions for reimbursement were all satisfied, and that the funds were advanced

solely to prevent closure of Grosvenor and protect defendant's collateral, not to preserve plaintiffs

own investment, thus precluding dismissal and instead warranting summary judgment in his favor.

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In reply, defendant reasserts that there was no enforceable agreement to reimburse

plaintiffs Grosvenor advances: the July 13, 2018 email was not a contract but, at most, a reminder

of prior discussions conditioned on a cash bid or plaintiff as winning bidder, appointment of a

Grosvenor receiver, and verification of the shortfall's legitimacy, none of which were satisfied

given that the winning bid was a credit bid, the receiver was not appointed until after the advances,

and the legitimacy of the shortfall could not be confirmed without a receiver. Defendant further

contends that the fraud claim fails because it rests on a non-existent contract, and that unjust

enrichment is barred as a matter of law since plaintiff, as a part owner of Grosvenor, admittedly

advanced funds to protect his own investment and thus personally benefited from keeping the

facility open, making any benefit to defendant at most incidental.

Plaintiff also moves for summary judgment on his breach of contract, fraud, and unjust

enrichment claims, asserting that defendant agreed to reimburse all his advances, including those

to Grosvenor, under the bankruptcy court Order approving bid procedures, the July 13, 2018 email,

and statements at the auction. Plaintiff maintains that defendant's refusal to repay those funds

breached a binding agreement, that defendant's assurances were knowingly false and induced his

reliance, and that Oxford was unjustly enriched because his emergency payments preserved

defendant's collateral and enabled its profitable sale.

In opposition, defendant argues that because there was never any enforceable agreement to

reimburse plaintiff for Grosvenor advances: the term sheet was only a draft, the bid procedures

and break-up fee, as approved by the Bankruptcy Court, covered only Woodbriar and post-

receivership obligations, and the July 13 email was at most a conditional "agreement to agree"

whose conditions were never met. Defendant further contends that plaintiffs supporting

affirmations are self-serving and contradicted by the record, that the fraud claim fails for lack of

any false representation or actual agreement, and that unjust enrichment is barred because plaintiff 3

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voluntarily paid to protect his own investment and thus bencfitted himself, with any benefit to

Oxford being merely incidental.

In reply, plaintiff underscores that there was a single, enforceable agreement for defendant

to reimburse all of plaintiffs operating advances for both Woodbriar and Grosvenor, evidenced

by the March 2018 understanding, the stalking-horse structure, the bid procedures, the July 13 "we

had said" email, and Weiss's auction statements, none of which were limited to Woodbriar or post-

receivership payments. Plaintiff claims his later emails were just requests for assurances under an

existing deal. not proof no agreement existed. On unjust enrichment, plaintiff argues the

Grosvenor advances did not protect his own investment but instead spared defendant from having

to make emergency protective advances and suffering a shutdown, and that the voluntary-payment

doctrine does not apply since plaintiff advanced funds in reliance on defendant's assurances and

without knowing defendant never intended to reimburse him.

Discussion

It is well established that summary judgment is granted when "the proponent makes a prima

facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to

demonstrate the absence of any material issues of fact, and the opponent fails to rebut that

showing" (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010] [citation omitted]).

Once the proponent has made a prima facie showing, the burden then shifts to the motion's

opponent to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue

of fact (Zuckerman v City of New York, 49 NY2d 557,562 [1980]). If there is any doubt as to the

existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extrude rs v

Ceppos, 46 NY2d 223, 231 [I 978]). Upon a motion for summary judgment, the court's function

is one of issue finding rather than issue determination (Sillman v Twentieth Century-Fox Film

Corp., 3 NY2d 395, 404 [1957]). ''It is not the function of a court ... to make credibility 4

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determinations or findings of fact, but rather to identify material triable issues of fact (or point to

the lack thereof)" (Vega v Restani Constr. Corp., 18 NY3d 499,505 [2012] [citation omitted]).

Breach o[Contract

'The essential elements of a cause of action to recover damages for breach of contract are

(l) the existence of a contract, (2) the plaintiffs performance pursuant to the contract, (3) the

defendant's breach of its contractual obligations, and (4) damages resulting from the breach"

(lunger v John V Dinan Assoc., Inc .• 164 AD3d 1428, 1430 [2d Dept 2018] [citations omitted]).

"[W]hile the existence of a contract is a question of fact, the question of whether a certain or

undisputed state of facts establishes a contract is one oflaw for the courts" (Jabczynski v Advanced

Drying and Restoration, 139 AD3d 1407, 1408 [4th Dept 2016] [citations omitted]). "It is well

established that a contract is unenforceable where there is no meeting of the minds between the

parties thereto regarding a material element thereof' (Brands v Urban. 182 AD2d 287, 289 [2d

Dept 1992] [citations omitted]). "If an agreement is not reasonably certain in its material terms,

there can be no legally enforceable contract" (Kensington Ct. Assoc. v Gullo, 180 AD2d 888, 889

[3d Dept 1992] [citations omitted]).

In the instant case, plaintiff primarily relies on an email dated July 13, 2018, sent by

defendant's attorney, John Weiss, Esq., and forwarded by defendant's managing director, Joseph

Somerset, to plaintiffs representative, Sam Wiesner. The email stated:

"I'm not sure what Sam Wis waiting for from us. We had said that if we all agree to the appointment of a receiver for Grosvenor and to move the auction to the week of August 27 that we would agree that the new Brach money to cover the payroll shortfall could be repaid first out of a cash bid or be used as a reduction to the bid of the stalking horse, subject only to all of us making sure the shortfall was legitimate.··

Plaintiff contends that he "advanced $90,000 immediately in reliance on the statement by

Oxford and Somerset's forwarding of the [July 13, 2018] email.'' However, the language of the

July 13 email does not reflect any present, binding contractual commitment on the part of Oxford. 5

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Instead, it is expressly conditional and forward-looking: Oxford stated it "would agree" that

plaintiffs advances "could be repaid" if specified contingencies occurred, namely (i) all parties'

agreement to appoint a receiver for Grosvenor, (ii) rescheduling the auction, (iii) verifying the

legitimacy of the shortfaJI, and (iv) either the winning bid was a cash bid or plaintiff prevailed as

the stalking horse bidder. Plaintiff identifies no other writing or communication demonstrating

definite reimbursement terms mutual assent, or a meeting of the minds regarding repayment of

advances made to Grosvenor.

Even assuming the July 13 email could be construed as an offer, plaintiff fails to show that

the stated conditions were ever fulfilled. Defendant alleges, and plaintiff does not dispute, that (i)

the winning bid was a credit bid, not a cash bid; (ii) plaintiff was not the winning bidder; (iii) no

receiver had yet been appointed at the time of the payroll shortfall or plaintiffs advance; and (iv)

the receiver was appointed only three days after plaintiffs final advance to Grosvenor. These

undisputed facts establish that the proposed conditions precedent identified in the July 13 email

were not satisfied.

As to the bid procedures and the bankruptcy court's order plaintiff highlighted, those

documents concern only Woodbriar, the debtor in bankruptcy, and impose no reimbursement

obligation for Grosvenor, a non-debtor facility. Likewise the April 2018 term sheet was never

executed and merely reflected preliminary discussions rather than any consummated agreement

evidencing mutual assent.

Based on the foregoing, as plaintiff has failed to demonstrate the existence of an

enforceable contract obligating defendant to reimburse his Grosvenor advances, the first cause of

action alleging breach of contract is dismissed.

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Fraud

'"The elements of a cause of action for fraud require a material misrepresentation of a fact,

knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and

damages" (Euryc/eia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 (2009] [citations

omitted]).

Here, plaintiffs fraud claim is premised on the assertion that defendant's ··July 13, 2018

email was ... a statement that an agreement was already in place under which Oxford had agreed

to reimburse Brach," while defendant's internal email circulated days earlier from Somerset stated

"that Oxford had no intention of reimbursing the Grosvenor advances." Plaintiff contends that the

July I 3, 2018 email was therefore a false representation on which he relied in making the advances.

Plaintiffs arguments are unavailing. As discussed above, the July 13, 2018 email does not

demonstrate that any agreement already existed; nor does it contain any present promise of

reimbursement. Rather, the email is expressly conditional and forward-looking, stating only that

Oxford "would agree" that plaintiffs advances "could be repaid" if several contingencies

occurred. Such statement does not constitute a misrepresentation of existing fact and cannot

support a fraud claim. Where the underlying communication is not a binding agreement for

purposes of a contract claim, it likewise cannot form the basis of a claim that defendant

misrepresented the existence of such an agreement.

Accordingly, the second cause of action aHeging fraud is dismissed.

Uniust Enrichment

"To prevail on a claim of unjust enrichment, a plaintiff must establish that the defendant

benefitted at the plaintiffs expense and that equity and good conscience require restitution"

(Whitman Realty Group, Inc. v Galano, 41 AD3d 590, 592-593 [2d Dept 20071). "Enrichment

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alone will not suffice to invoke the remedial powers of a court of equity" (McGrath v Hilding, 41

NY2d 625, 629 [ 1977]).

"The basis of a claim for unjust enrichment is that the defendant has obtained a benefit

which in "equity and good conscience" should be paid to the plaintiff' (Corsello v Verizon New

York, Inc., 18 NY3d 777, 790 [2012] [citation omitted]). "In a broad sense, this may be true in

many cases, but unjust enrichment is not a catchall cause of action to be used when others fail"

(id). "It is available only in unusual situations when, though the defendant has not breached a

contract nor committed a recognized tort, circumstances create an equitable obligation running

from the defendant to the plaintiff' (id.). "An unjust enrichment claim is not available where it

simply duplicates, or replaces, a conventional contract or tort claim" (id.).

Here, plaintiff fails to establish that defendant was unjustly enriched at plaintiffs expense.

It is undisputed that plaintiff partially owned Grosvenor and had a vested interest in its continued

operation at the time of advances. As Mr. Wiesner testified, plaintiff --want[ed] the [Grosvenor]

facility to do well" because '"Mr. Brach had a fortune of money invested there." The advances

were made to Grosvenor to meet its payroll and operating expenses, not to Oxford, and plaintiff

was protecting his own investment interest in that facility. Further, the unjust enrichment claim

rests on the same factual allegations underlying plaintiffs breach of contract and fraud theories,

both of which are dismissed above.

Accordingly, the third cause of action alleging unjust enrichment is dismissed.

Conclusion

Based on the foregoing, plaintiffs motion for summary judgment is denied in its entirety.

Defendant's motion for summary judgment is granted, and the instant action is dismissed in its

entirety.

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Any argument not explicitly addressed herein was considered and deemed to be without

merit or unnecessary to address given the court's determination.

ENTER:

Honorable Reginald A. Boddie Justice, Supreme Court

HON. REGINALD A. BODDIE J.f:.C'.

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