Pesochinsky v. Gurariy

2024 NY Slip Op 34371(U)

• Court: New York Supreme Court, Kings County
• Decided: December 16, 2024
• Docket: Index No. 517721/2024
• Status: Unpublished

Opinion

Pesochinsky v Gurariy 2024 NY Slip Op 34371(U) December 16, 2024 Supreme Court, Kings County Docket Number: Index No. 517721/2024 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 12/16/2024 09:25 AM INDEX NO. 517721/2024 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/16/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CIVIL TERM: COMMERCIAL 8. ----.--""'·- ·. ---------... -·-.-------·-----------.-·-x YAKOV PESOCHINSKY, individually and derivatively On behalf of BRIGHTON 6th STREET OWNERS CORP. And YAKOV PESOCHINSKY individually and ctet.tvatley On behalf of HOMECREST GARDENS INC .. , . Plaintiff, Uecision and order -,against- Index No. 517721/2024 SERGE GURARIY, Defendant, ---------- -.---------- ------------------~ December 16, 2024 PRESENT: HON. LEON RUCH.ELSMAN . Motion Seq •. #1

The plaintiff has moved seeking the appointment of a receiver

and for summary judgement on various causes of action. The defendant opposes the motion. Papers were submitted by the

parties and arguments held. After reviewing all the arguments

this court now makes the following determination.

According to the verified complaint, on February 24, 1997

the plaintiff Yakov Pesbchinksy, the defendant Serge Gurariy and

non-party Yefim Orertbakh entered into shareholder agreements

regarding two entities, the plaintiff's Brighton 6th Street Owners Corp., and Ho:mecrest Gardens: Inc. Both entities were

formed to purchase co-op units with which to generate income.

Ofenbakh passed away in 2019 and his shares have riot been

tr;;msferred to ariy individual or entity. The defendant haE> been

the manager of both entities s ±nee 2 O19 ..

The verifiec;l <::omplaint alleges that the defendant has failed

to adeq1.1ately manage both entities and has: engaged in s.elf-

clealing concerning both entities. Further, the verified

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complaint alleges the defendant has failedito distribute the

proper amount of profits due the plaintiff regarding both

entities ahd has improperly paid distributiorts to 0fehbakh's

widow even though she is not a shareholder.

The verified complaint alleges causes ;of action for breach

of contract, conversion, breach o.f fiduciary dutiE!s, unjust

enrichment and an accounting.

The motions seeking the appointment of a receiver as well as

summary judgement have now been filed. As noted; the motions: are

opposed.

Conclusions of Law

I t is well settled that "a temporary receiver should only

be appointed where there is a clear evidentiary showing of the

necessity for the conservation of the property at issue and the

need to prqtect a party's interests in that property" (™, Quick v. OUick, 69 AD3d 828, 893 NYS2d 583 [2d Dept., 2010] ) . Thus, a

temporary receiver is appropriate where the party has presented

"clear and convincing evidence of irreparable loss or waste. to

the subject propecrty and that a temporary receiver is needed to

protect their interests" (Magee v. Magee, 120 AD3d 637, 990 NYS2d

8 94 [2d Dept., 2014]) . MqreovE;;;r, a receiver is charged with the

responsibility to "preserve arid protect the property. for th~

benefit 6£ al1. persons interested in t.he estate" and the

recE=iver's allegiance is only to the court (Bank of Tokyo Trust

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Company v. Urban Food Malls Ltd. , 229 AD2di 14, 65 0 NYS2d 654. [1s t

.Dept., 1996] ) •

There is scant evidence a receiver is necessary in this

case. ~be basis for the receiver rests uppn two grounds; First,

that the defendant is undervaluing the market rents and second : :

that the defendant has failed to give the plaintiff his proper

distributions arid is improperly giving distributiOns to

o:i:enbakh' s widow. First, there is little evidence supporting.

these allegations. Moreover, even if they are true they are not.

·the sort of waste and irreparable loss that dem-ands a receiver.

Indeed, these claims cari easily be resolved through an

accounting; rather than a receiver. There:fore, the motion

seeking the appointment of a receiver is denied.

Turning to the motion seeking summary judgement, where the

material facts at issue in a case are in dispute summary judgment

cari.rrot be granted (Zuckerman v. City of New York, 49 NYS2d 557,

427 NYS2d 595 [1980]). Generally, it is ±;or the jury, the trier

of fact to determine the legal cause of ariy i.rijurx, however,

where only one conclusion may be drawn from the facts then the

qu:estion of legal cause may be decided by the trial court as a

matter of law (Marino v. Ja~isoh, 1sg AD3d 102lr 136 NYS3d 324

[2d Dept., 2021). At this juncture, without any discovery, summary judgement

is hot appropriate. There are many issues that are ih dispute,

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including whether the parti~s waivE!d the lack of any meetings and whether any party has been damag.ed thereby. These• issues cannot

bE:o summarily decided. Con$equently, the mqtion seeking summary

judgement is denied.

So ordered.

ENTER:

DATED: December 16, 2024 Brooklyn NY Hon. Lebri Ruchelsrhari. JSC

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