Hersko v. Hersko

2024 NY Slip Op 32483(U)

Opinion

Hersko v Hersko 2024 NY Slip Op 32483(U) July 22, 2024 Supreme Court, Kings County Docket Number: Index No. 520492/2021 Judge: Wayne P. Saitta 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 07/22/2024 03:13 PM INDEX NO. 520492/2021 NYSCEF DOC. NO. 828 RECEIVED NYSCEF: 07/22/2024

At an IAS Term, Part 29 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 22nd day of July 2024.

P R E S E N T:

HON. WAYNE SAITTA, Justice. ------------------------------------------------------------X ISAAC HERSKO a/k/a YITZCHOK SHLOMO HERSKO, Plaintiff, Index No 520492/2021 -against-

BARRY HERSKO a/k/a ZEV DOV HERSKO DECISION AND ORDER a/k/a BEREL HERSKO, BELLA HERSKO, WILSON-HINS ASSOCIATES, INC, CLARK MS 13 WILSON, INC., WILSON PROPERTIES & EQUITIES, INC., WILSON FLAT, INC., WILSON HAN ASSOCIATES, INC., WILSON-MER ASSOCIATES, INC., B. CLARK ASSOCIATES, INC., 516 KINGSTON, LLC and

ABRAHAM WEISEL, as escrow agent,

Defendants.

------------------------------------------------------------X

The following papers read on this motion: NYSCEF Doc Nos Notice of Motion/Order to Show Cause/ Petition/Affidavits (Affirmations) and Exhibits 306-308 Cross-motions Affidavits (Affirmations) and Exhibits Answering Affidavit (Affirmation) 373 Reply Affidavit (Affirmation) 377 Supplemental Affidavit (Affirmation)

This case involves a dispute between two brothers ownership of nine properties in

Brooklyn (the Properties) and other investments. The Brooklyn properties are all in the

name of corporations or LLC’s in the name of BARRY HERSKO.

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In this motion Plaintiff seeks an order pursuant to CPLR 5107 directing the sheriff

of the County of Kings to convey 50% ownership of the Brooklyn Properties to him.

Plaintiff ISAAC HERSKO commenced this action alleging that he and his brother

BARRY HERSKO were business partners and that they had an agreement that they would

invest in real properties and that separate and distinct entities would be formed to

purchase and hold title to each Property but that BARRY HERSKO would be listed as the

sole shareholder of these companies.

Plaintiff alleges that the agreement provided that Isaac and Barry were equal

partners in their business dealings related to the Properties, including, but not limited to,

the share of rents received from tenants occupying the Properties. and that ISSAC

HERSKO was entitled to 50% of the monies deposited with WEISEL.

The brothers entered into a written agreement which memorialized their

agreement which provided that the brothers were equal partners in the properties, in

other joint investments, and monies deposited with Defendant WEISEL.

As relevant to this motion, the complaint sought, among other relief a declaration

that ISAAC HERSKO is a 50% owner in each of the Properties and the imposition of a

constructive trust on the properties.

Justice Rothenberg granted ISSAC HESKO’s motions for default judgments

against BARRY HESRKO and the Defendant Corporations by order dated April 21, 2022.

That Order was affirmed on appeal.

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Plaintiff argues that based on the order granting leave to file a default judgment,

Plaintiff is entitled to have 50% interest in each property conveyed to him.

Defendant argues that the motion is premature as no judgment directing

Defendants to convey any interest in the properties has yet been entered. The order

granted the motion for a default judgment without specifying the terms of the judgment.

Defendant also argues that the pleadings do not support the issuance of a judgment

directing conveyance of 50% interest in the Properties to Plaintiff. Specifically, that the

complaint states that the Properties are owned by corporations not by Defendant BARRY

HERSKO individually.

The motion is in fact premature because no judgment has yet been issued for the

Sheriff to enforce. Further, the specifics of the relief to be awarded, based on the

traversable facts in the complaint deemed admitted by the default, have yet to be

determined.

The complaint alleges that ISAAC HERSKO is a 50% owner in each of the

Properties. However, the complaint also alleges that the agreement between the brothers

was that separate and distinct entities would be formed to purchase and hold title to each

Property. The complaint alleges that each of the Properties is owned by a corporation of

which BARRY HERSK is the sole shareholder.

The complaint further alleged that ISAAC and BARRY HERSKO memorialized

their agreement in a writing. The written agreement recites that the properties are in

corporations the shares or which are solely in the name of BARRY HERSKO (referred to

in the agreement as Party B). The agreement provides that ISAAC and BARRY HERSKO

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are equal partners in the Properties and that ISAAC HERSKO (referred to as Party A),

can “demand that he be added formally to the name of the corp.”

Thus, it must still be determined whether the default judgment should direct

conveyance of the Properties themselves or the shares in the corporations owning the

Properties.

WHEREFORE, it is ORDERED that Plaintiff’s motion for an order directing the

Sheriff to convey a 50% interest in the Properties is denied as premature.

E N T E R:

JSC

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