Herszdorfer v. Goldberg

2024 NY Slip Op 30010

• Court: New York Supreme Court, Kings County
• Decided: January 2, 2024
• Status: Unpublished

Opinion

Herszdorfer v Goldberg 2024 NY Slip Op 30010(U) January 2, 2024 Supreme Court, Kings County Docket Number: Index No. 26187/92 Judge: Genine D. Edwards 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 01/02/2024 04: 35 PMI INDEX NO. 26187/1992 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/02/2024

At an IAS Tenn, Part 80 of the Supreme Court of the State of New York. held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklvn, New York, on the zml day of January 2024. .

PRESEN

HON. GENINE D. EDWARDS,

Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X PAUL HERSZDORFER. as Executor of the Estate of LILLIAN HERSZDORFER, Deceased, and PAUL HERSZDORFER, Individually,

Plaintiffs, DECISION, ORDER, AND Jt 1DGMENT

- against - Index No. 26187/92 (converted toe-filing)

BARRY GOLDBERG, M.D., Mot. Seq. No. 7; Inquest on Damages Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The following e-filed papers read herein: NYSCEF Doc No.:

Order to Show Cause. Affimrntions, and Exhibits Annexed .. . 86. 76-83 Memorandum of Law in Opposition and Exhibits Annexed .. . 88-94 Post-Argument Letter Submission ...................... . 96

In this action to recover damages for medical malpractice and wrongfu] death,

plaintiff Paul Herszdorfer ('"plaintiff'), individually and as the executor of the estate of

his late mother, Lillian Herszdorfer (the ''decedent"), moves, by order to show cause,

dated August 24, 2023 (NYSCEF Doc No. 86), for an order restraining and staying

defendant Barry Goldberg. M.D. ("defendant"). from disposing of, encumbering,

pledging, mortgaging, transferring, or in any way affecting the alienability of premises at

517 Deer Park Avenue, Dix Hills, New York 11746 (the "Suffolk County property"),

until further order of the court.

On September 18, 2023, the Court heard oral argument on plaintiffs motion and

concurrent1y held an inquest on damages in accordance with the Decision and Order,

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dated June 25, 2023. The Court reserved decision on both the motion and the inquest on

damages. Defendant opposed both categories of relief.

Determination of Plaintiff's Motion (Seq. No. 7)

CPLR § 6301 provides, in relevant part, that ··[a] preliminary injunction may be

granted in any action where it appears that the defendant threatens or is about to do, or is

doing or procuring or suffering to be done, an act in violation of the plaintiffs rights

respecting the subject of the action, and tending to render the judgment ineffectual. ... "

As the Court of Appeals observed, .. [i]n applying provisional equitable remedies under

fthe predecessors to the CPLR], from as early as 1892 ... , our courts have consistently refused to grant general creditors a preliminary injunction to restrain a debtor's asset

transfers that allegedly would defeat satisfaction of any anticipated judgment.'' Credit

Agricole Jndosuez v. Rossiyskiy Kredit Bank, 94 N.Y.2d 541. 708 N.Y.S.2d 26 (2000).

"A preliminary injunction may not be obtained to preserve assets as security for

a potential monetary judgment even if the evidence shows that a party intends to frustrate

any judgment by making it uncollectible... Fatima v. Twenty Seven-Twenty Four Realty

Corp .. 65 A.D.3d 1079. 885 N.Y.S.2d 224 (2d Dept., 2009). Thus. as a potential general

unsecured creditor of defendant. plaintiff is not entitled to any injunctive relief with

respect to the Suffolk County property. See Buckley v. McAteer, 210 A.D.3d 1044.

179 N.Y.S.3d 329 (2d Dept., 2022), Iv. dismissed 39 N.Y.3d 1128, 188 N.Y.S.3d 10

(2023); Fatima. 65 A.D.3d 1079, 885 N. Y.S.2d 224; Hall v. Cucco, 5 A.D.3d 631,

774 N.Y.S.2d 770 (2d Dept., 2004). ln light of the foregoing, defendant's remaining

objections to plaintiffs motion were rendered academic.

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Inquest on Plaintiff's Damages

""[T]he sole issue to be determined at the inquest was the extent of the damages

sustained by the plaintiffs." Kim v. S&M Caterers, Inc., 136 A.D.3d 755, 24 N.Y.S.3d

743 (2d Dept., 2016). ··At the inquest. the plaintiffs bore the burden of setting forth a

prima facie case as to damages.'· Oparaji v. 245-02 Merrick Blvd, LLC 149 A.D.3d

1091, 54 N.Y.S.3d 408 (2d Dept., 2017). 1

Here, however. plaintiff failed to introduce certified medical records and/or expert

testimony on the issue of damages. which (according to the complaint at NYSCEF Doc

No. 9) consisted of pain and suffering as well as wrongful death. Under the prevailing

easel aw in the Second Judicial Department, the absence of requisite proof was fatal to

plaintiffs prima facie case as to damages. See Castaldini v. Walsh, 186 A.D.3d 1193,

127 N.Y.S.3d 917 (2d Dept., 2020); Kotlyar v. Strogov. 58 A.D.3d 693. 871 N.Y.S.2d

662 (2d Dept.. 2009)~ Abbas v. Cole, 7 A.D.3d 649, 776 N.Y.S.2d 846 (2d Dept., 2004).

Accordingly, the complaint must be dismissed, as more fully set forth in the decretal

paragraphs below. See Jacobs v. New York City Tr. Auth., 14 Misc 3d l 30(A), 836

N.Y.S.2d 485 (App. Term. 2d & 11 th Jud. Dists. 2007).

1 See also Paulson\'. Kotsilimbas, 124A.D.2d513, 508 N. Y.S.2d 428 ( I st Dept., 1986) ( "Even in the case of a default upon inquest and assessment, plaintiff is required to prove the actual damages sustained."). The First Judicial Department"s decision in Paulson was cited with approval by the Second Judicial Department in Tumhure/lo v. Bensnnhursl Car & limo Serv., Inc., 305 A.D.2d 664, 759 N. Y.S.2d 690 (2d Dept., 2003).

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Conclusion

Based on the foregoing and after oral argument, it is

ORDERED and ADJUDGED that plaintiffs order to show cause, dated

August 24, 2023 (NYSCEF Doc No. 86). is denied. and all stays therein are vacated nunc

pro tune to the date thereof~ and it is further

ORDERED and ADJUDGED that plaintiffs complaint is dismissed without

costs or disbursements, and it is further

ORDERED that defendant's counsel is directed to electronically serve a copy of

this Decision, Order, and Judgment with notice of entry on plaintiffs counsel and co-

counsel, as well as to electronically file an affidavit of service thereof with the Kings

County Clerk.

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