Kahan v. 960 Franklin LLC

2024 NY Slip Op 30615(U)

• Court: New York Supreme Court, Kings County
• Decided: February 27, 2024
• Status: Unpublished

Opinion

Kahan v 960 Franklin LLC 2024 NY Slip Op 30615(U) February 27, 2024 Supreme Court, Kings County Docket Number: Index No. 536153/2022 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 02/27/2024 01:44 PM INDEX NO. 536153/2022 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 02/27/2024

SUPREME 'coURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 - --------------~-------- ---------- -----x HAIM KAHAN, Plaintiff, Decision and :order

- against - Index No. 53£153/2022

960 FRANKLIN LLC and DARYL HAGLER, February 27, 2024 Defendants,

PRESENT: HQN. LEON RUCHELSMAN Motion Seq. #6

The defendants have moved pursuant to CPLR §3212 seeking

summary jucigernent dismissing the two remaining causes of action

of the amended complaint. The plaintiff opposes the motion,

Papers were submitted by the parties and after reviewing all the

arguments, this court novi makes the following determination.

According to the amended complaint in 2022 non-party Chesky

Weisz approached the plaintiff to invest in a real estate deal.

Kahan agreed and wired ten percent of the purchase price, namely

$4,500,000 on August 9, 2022. Sometime thereafter the plaintiff

asserts that Weisz's representations were false and informed the defendants and Weisz 1:hat he woulci agree to use tile funds to

close on the property with the actual seller. The closing

occurred on November 2, 2022 wherein 960 Franklin LLC purchased

the property fqr $42r750~000, On August 10, 2022, prior to the closing, defep:dant Hagler,

the s.ole owner of defendant 960 Franklin LLC ente.red in:to an.

assignment agreement with Weis·z whe.re:by 960 .Franklin Owner LL¢,

an entity owned b:Y Weisz [he.:reinafter the 'Weisz entity'] would

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become the sole owner of 960 Franklin LLC £pr a purchase price of

$53,500,000. The assignment was designed to take place in two

stages. First, the Weisz entity would provide a down payment of

$4,500, 000 and acquire a 51% interest in 960 Franklin LLC and the

balance Of $49,000,000 would be paid at the closing and the Weisz

entity would then acquire the remaining 49% interest in 960

Fr.anklin LLC.

On November 2, 2022, the day of the closing, the Weisz

entity filed for bankruptcy. The petition listed the 51%

ownership interest in 960 Franklin I..LC as .an asset and based upon

the assignment agreement the petition listed Hagler as the

largest creditor with an unsecured claim in the amount of

$49,000, ODO. Although the defendants initially opposed the

bankruptcy petition, on March 14, 2023 the Weisz entity filed a

plan of· reorganization which defendant Hagler jo:Lned. The

reorganization plan was approved whereby this action and the

plaintiff's claims survived such reorganization.

The plaintiff inBt.ituted this lawBui t and two causes of

action for unjust enrichment and conversion remain. The basis

for those causes of action is the assertion that the plaintiff

forwarded significant sums of money which have not been accounted

to. the pla1.ntif:f in any way. The def19ndants have now Jrtovec:i

seeking summary judgement dismissing thos.e claims on the g.rounds

they fail to allege any v,;ilid clcdms ~

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Conclusions of Law

Where the matE=:rial facts at issue in a case are in dispute

summary judgrneht cannot be granted (Zuckerman v. City of New

York, 49 NYS2d 557, 427 NYS2d 595 [1980]). Generally, it is for

the jury, the trier of fact to determine the legal cause of any

injury, however, where only one bohcli.1sioh may be drawn from the

facts then the question of legal cause may be decided by the

trial court as a matter of law (Marino v. Jamison, 189 AD3d 1021,

136 NYS3d 324 [2d Dept., 202 i) .

The elements of a cause of action :to recover for unjust

enrichmE:.nt are that "(1) the defendant was enriched, (2) at the

plaintiff's expense, and (3) that it is against equity and good

conscience to permit thE=:- defendant to retain what is sought to be

recovered" (see, GFRE. Inc., v. U.S. Bank, N.A., 130 AD3d 569, 13

NYS3d 4 52 .[2d Dep t . , 2015] . ). . Thus, "the· essential inquiry in any

action for unjust enrichment or restitution is whether it is

against equity and good conscience to pe:rtnit the defendant to retairt what is soug'ht to be recovered" (,see, Paramount Film

Distributing Corp., 30 NY2d 415, 344 NYS2d 388 [1972]).

It is well settled that to establish a claim for conversion

the party must show the legal right to ah identifiable item or

items and that the other party ha..s exerc;ised µnauthorized control

and ownership over the items (Fiorenti v., Central Emergency

Physicians, PLLC 1 305 AD2d 453, 762.NYS2d 402 [2d Dept,, .2003J).

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As the Court of Appeals e:x:plained "a conversion takes place when

someone, intentionally and without a:uthc:irity, assumes or

exercises control over personal property belonging to someone

else, interfering with that person's right of p6ssessi6n ... Two

key elements of conversion a:re (1) plaintiff's possessory right

or interest in the property ... and (2) defendant's dominion over

the property or interference with it, in derogation of

plaintiff's rights" (see, Colavito v. New York Organ Donor

Network Inc., 8 NY3d 43, 827 NYS2d 96 [2006]). Therefore, where

a defendant "interfered with plaintiff's right to. possess the

property" (Hillcrest Homes, LLC v. Albion Mobile Homes, lnc, ., 117

AD3d 1434, 984 NYS2d 755 [4 th Dept., 2014]) a conversion has

occurred.

In a decision and order dated May 18, 2023 the court denied

defendant's motion to dismiss these two causes of action.

Despite the fact no discovery has since taken place this motion

seeking summary Judgement has been filed "to demonstrate. that the two remaining causes of action :for unjust enrichment and

conversion ... have absolutely no merit" (see, Memorandum 0£ Law in

Support, Preliminary Statement [NYSCEF Doc. No. 144]'}. To the

extent this motion really seeks to- reargue the earlier

de.termination the court ¼liTl conduct a fresh analysis. An affidavit provided by Hagler iiiuminate.s the

transaction~ relevant to this action. Ac:co.rding.to Hagler on

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July 19r 2022 Hagler, through hi,;i entity 960 Franklin LLC,

entered into contracts to purchase two parcels, for $42,350,000

and $400, ()QQ. respectively and was required to pay two non-

refundable deposits of $4,235,000 and $40,000 respec:l::.ively. Of

course, the plaintiff's funds were not utilized for these

deposits since the plaintiff did not yet wire any funds. Hagler

then assigned his interests to the :WE!isz entity and negotiated an

extension of the closing date on behalf of the Weisz entity in

exchange for additional down payments. Hagler states that ''the

additional deposits were funded by a down payment payable under

my contract with the Weisz Entity" (see, Affirmation of Daryl

Hagler, ,s [NHYSCEF 116]). Thus, ort August 10, 2022 Hagler

entered into agreements with Weisz wherein Hagler assigned 51%

percent of his membership interests in 960 Franklin LLC to Weisz.

Later that day, pur:su.ant to the agreements, the down payments

required were wired to the escrow a,gent. Indeed, a wire transfer

was sent by the plaintiff to the escrowee ~gent on AUgust .9, 2022

(see, NYSCEF Doc . No . 24 ] ) . There can be no d:i_ spu te t h a t the

plaintiff's funds provided the down payment neqessary for the

assignment agreement to become effective. transferring 51% of the

interests of 960 Franklin LLC to the Weisz entity. However, the

Weis.z entity failed to effectuate the closing on Nov.ember 2,

2022. At that juncture Hagler, through 960 Fra:n.kliri LLC c.losed

on the prope.i:-tie$ iri. :efforts )'to prevent the ioss of the

5.

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Deposits" (see, Affirmation qf Daryl Hagler, 144 [NYSCEF Doc. No. 116]). Jlagler explains that upon the def-ault of the Weisz

entity, Weisz "automatically forfeited any interest in 960

Franklin, I was entitled to retain the Down Payment as liquidated

damages, arid I was expressly permitted to close title under the

Underlying Sales Contracts and purchase the Property from the

Underlying Sellers (through 960 Franklin),; (see, Affirmation of

Daryl Hagler, '1[43 [NYSCEF Doc. No, 116]). Thus, Hagler utilized

Kahari's funds to salvage the deposits made including Hagler's owh

deposit. To be sure, had the Weisz entity closed upon the

properties then Kahan would only have Claims against Weisz. The

failure of Weisz to close forced Hagler to so close using Kahan's

money. Thus, Kahan surely ha,s claims for unjust enrichment

against Hagler.

Hagler asserts that the plaintiff has no: claims against him

because "the Weisz Entity is not a party to the Underlying Sales

Contracts and contracted to purchase all of my Membership

Interests in 960 Franklin for a purcha.se price in the aggregate

sum of $53,500,000" (See, Affirmation bf Daryl Hagler, '1[29

[NYSCEF Doc. No. 116]). In other words, the plaintiff cann9t

assert arty claims against Hagler because the plaintiff's only

intera<:t.i.ons in .all these transact;ions were with We.i•S.Z and not

Hagler at all. While that is surely true, as noted, Hag.ler

utiii~ed the plaintiff's funds io close upon the prop$rties,

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Hagler further argues that the down payment made by Kahan

was entitled to be retained by Hagler as "liquidated datnages"-

pursuant the assignment agreement with the- weis:z: entity, While

that is true and of course Hagler did not need to know of or

particularly care about, Kahan's investment, Karyan did invest

tho·se funds and by the closing date Hagler was aware of that

investment. Thus, Hagler has not adequately demonstrated why no

unjust enrichment claim accrues to Kahan thereby; Hagler seeks

to shift the blame to either Kahan himself for failing to engage

in due diligence or to Weisz for allegedly committing fraud upon

Kahan. Even if both those assertions are true that does not

change the simple reality that Kahan invested funds which were

used by Hagler to save his down payment and allow the closing to

occur.

This entire motion is rooted in one question, namely

whether Hagler's right to retain the down payment upon Weisz's

default necessarily allows Hagler to keep Kaha:n's investment.

Hagler insists that "the.re was no relationship between" Kahan and

Hagler, that they \\had no dealings with each other" _and that "960

Franklin did not do anything to induce Kal1ari to make the Down

Payment" (see, Memorandum of Law in. Support, pages 14, 15 [NYSCEF

Doc. No . 14 4 ] ). . Howev.e r, to. as se r:t an. unjust .enrichment claim

privity between the parties. is not reqt1ired 9 s long as the relationship i's n:ot too attenuated (Mandarim Trading Ltd., v.

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Wildenstein, 16 NY3d 173, 919 NYS2d 465 [2011]). That means "the

parties must have something akin to specific knowledge of one

another's existence'! (Bashian & Farber LLP v. Syms, 173 AD3d 659,

102 NYS3d 255 [2d Dept., 2019]). Although Hagler claims he was

not aware of the Kahan wire transfer of funds in August 2022 when

they were first transferred (see, Affirmation-of Daryl_Hagler,

9133 [NYSCEF Doc. No. 116]), he certainly became aware of I

Weisz's misrepresentations . Indeed, on octoper 28, 2022 Ka,han

informed Hagler that he had deposited $4,500,000 with the

escrowee am:i sought to preserve his rights to purchase the

property (see, Letter, dated October 28, 2022 [NYSCEF Doc. No.

22]). Thus, prior to the closing Hagler was fully aware that

Kahari had inve·Sted half the total deposit. Therefore, Hagler

utilized Kahan'S funds to save his own deposit when Weisz failed

to close. It is true that Hagler may not have wanted to close

and may have claims against Weisz. in this regard, however, it is

unavoidably true that Hagler used Kahan' s funds to ·enable him to

close and avert losing his own deposit. Whether Hagler's right

to retain the down-payment as liquidated damages permits Hagler

to keep Kahart's funds is surely a question about unjust

enrichment that cannot be decided without any discovery in a

summary fashion. Likewise, Hagler was fully aware the funds

belonged to Kahan. Whethe.r he believed he had the right to use

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them or he was manipulated irtto using them: to secure his own four million dollar down payment certainly raises questions whether

any conversion took place.

Lastly, the bankruptcy confirmation plan accepted by Hagler

does not demand a dismissal of these claims. Pursuant to the

reorganization plan of the Weisz bankruptcy, Hagl·er chose to

regain all the membership interests o.f 960 Franklin LLC and the

plan administrator assigned Hagler 51% of the membership interest

of 960 Franklin LLC, previously assigned to Weisz, on May 22, 2023. Thus, Hagler insists that 960 Franklin LLC still owns the

property. That reality further supports Kahan's claims since, as

noted, Hagler purchased the property utilizing Kahan's money.

Therefore, the rttotiort see.king sutnrnary judgement dismissing

the conversion and unjust enrichment causes of action is denied.

Considering this motion was really a motion to reargue the

parties, irtcludirtg the defendants may file a motion for summary

judgement at the conclusion of all discovery.

So ordered.

ENTER:

DATED: February 27, 2024 Brooklyn N•. Y, Ruchelsman JSC

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