SD Second Ave. Member LLC v SD Second Ave. Venture, LLC 2024 NY Slip Op 33073(U) September 3, 2024 Supreme Court, New York County Docket Number: Index No. 152270/2024 Judge: Joel M. Cohen 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. INDEX NO. 152270/2024 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 09/03/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M ----------------------------------------------------------------------------------- X
SD SECOND AVENUE MEMBER LLC, INDEX NO. 152270/2024
Plaintiff, MOTION DATE 06/03/2024 - V - MOTION SEQ. NO. 002 SD SECOND AVENUE VENTURE, LLC, SD SECOND AVENUE CS MEMBER, LLC, CLAUDIO SOIFER, SD SECOND AVENUE HOLDING, LLC, SD SECOND DECISION+ ORDER ON AVENUE PROPERTY, LLC,250 LEGACY HOLDINGS, MOTION LLC
Defendants. ----------------------------------------------------------------------------------- X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 002) 140, 141, 142, 143, 144, 145, 146, 147, 150, 151, 152, 153, 156, 157, 158, 159 were read on this motion to DISMISS
Defendants 250 Legacy Holdings, LLC ("250 Legacy"), SD Second Avenue CS Member,
LLC ("CS Member"), Claudio Soifer ("Soifer"), SD Second Avenue Venture, LLC ("SD
Venture"), SD Second Avenue Holding, LLC ("SD Holding"), and SD Second Avenue Property,
LLC ("SD Property") (collectively, "Defendants") move for an Order (a) pursuant to CPLR §
321 l(a)(4), dismissing the First and Second Causes of Action of the Verified Complaint
("Complaint") filed by Plaintiff SD Second Avenue Member LLC ("Plaintiff' or "JS Member");
(b) pursuant to CPLR § 602(a), consolidating the Complaint's Third, Fourth, and Fifth causes of
action for all purposes with the action currently pending in New York State Supreme Court, New
York County, styled Claudio Soifer, et al. v. SD Second Avenue Member LLC, et al., Index No.
152270/2024 SD SECOND AVENUE MEMBER LLC vs. SD SECOND AVENUE VENTURE, LLC ET Page 1 of 6 AL Motion No. 002
1 of 6 [* 1] INDEX NO. 152270/2024 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 09/03/2024
654475/2021 (the "Soifer Action"). 1 According to Defendants, JS Member's first and second
causes of action in the Complaint should be dismissed as admittedly duplicative of its
counterclaims in the Soifer Action.
Plaintiff partially opposed this motion (NYSCEF 153). Thereafter, the parties attempted
to resolve this motion by stipulation but they did not agree on the resolution of the first two
causes of action (NYSCEF 157-158). Accordingly, the Court will address this motion.
DISCUSSION
An action may be dismissed when "there is another action pending between the same
parties for the same cause of action in a court of any state or the United States; the court need not
dismiss upon this ground but may make such order as justice requires" (CPLR 3211 [a][4]). To
determine whether an action is subject to dismissal under that provision, New York courts
analyze whether there is substantial identity of the parties, whether the causes of actions are
"substantially similar," with a "critical element[] that both suits arise out of the same subject
matter or series of alleged wrongs." (Syncora Guar. Inc. v JP. Morgan Sec. LLC, 110 AD3d 87,
96 [1st Dept 2013] [citation omitted]). Dismissal on this ground is in the broad discretion of the
court (Whitney v Whitney, 57 NY2d 731, 732 [1982]).
Here, the parties in this Action and the Soifer Action are substantially the same. CPLR
321 l(a)(4) requires "substantial, not complete, identity of the parties." (Syncora Guarantee Inc.,
110 AD3d at 96). JS Member is the Plaintiff in this action and a Defendant in the Soifer Action.
1 The Soifer Action was previously consolidated for purposes of joint discovery and trial with the action currently pending in New York State Supreme Court, New York County, styled JS.I.K. International LLC, et al. v. Joshua Schuster et al., Index No. 650898/2023 (the "Karten Action")
152270/2024 SD SECOND AVENUE MEMBER LLC vs. SD SECOND AVENUE VENTURE, LLC ET Page 2 of 6 AL Motion No. 002
2 of 6 [* 2] INDEX NO. 152270/2024 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 09/03/2024
Additionally, all of the Defendants in this action except 250 Legacy are Plaintiffs in the Soifer
Action.
Further, JS Member's First and Second Causes of Action for breach of contract and
breach of fiduciary duty are substantially similar to the Counterclaims in the Soifer Action for
breach of contract and breach of fiduciary duty. Both are asserted against CS Member, allege
that CS Member breached the JV Agreement and breached its fiduciary duties as Managing
Member under the JV Agreement (compare NYSCEF 101 ["Counterclaims"] ,i,i 24-35 with
NYSCEF 1 ["Compl"] ,J,J 47-58).
As Plaintiff points out, the majority of Plaintiff's claims regarding CS Member's
mismanagement in this Action-which relate to a series of improper distributions made by
Defendants in the wake of Defendants' fraudulent conveyances-took place after the relevant
Answer with Counterclaims was filed in the Soifer Action. However, these allegations still arise
from same the underlying facts as the claims set forth in the Answer with Counterclaims. Given
these circumstances, the Court finds that dismissing the first and second causes of action without
prejudice to amending those causes of action in the Soifer Action to bring the allegations up to
date is appropriate. This will preserve resources and prevent inconsistent rulings.
Finally, Plaintiff does not oppose the portion of Defendants' motion which seeks
consolidation of the Complaint's Third, Fourth, and Fifth causes of action for all purposes with
the Soifer Action pursuant to CPLR 602(a), and therefore this request is granted.
Accordingly, it is
ORDERED that Defendants' Motion to Dismiss and Consolidate is GRANTED, and
Plaintiff's first and second causes of action are dismissed without prejudice to amending the
corresponding counterclaims in the Soifer Action; Plaintiff is granted to leave to amend its
152270/2024 SD SECOND AVENUE MEMBER LLC vs. SD SECOND AVENUE VENTURE, LLC ET Page 3 of 6 AL Motion No. 002
3 of 6 [* 3] INDEX NO. 152270/2024 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 09/03/2024
Answer and Counterclaims in the Soifer Action within twenty (20) days of the date of this Order
and may, if it chooses, file a Third-Party Complaint in the Soifer Action against 250 Legacy that
will relate back to the filing of its corresponding claim in this action; responsive pleadings shall
be filed within twenty (20) days thereafter; it is further
ORDERED that within seven (7) days of the responsive pleadings being filed, the parties
in the new consolidated Soifer Action and the Karten Action shall submit a proposed discovery
order to the Court; it is further
ORDERED that the Third, Fourth, and Fifth causes of action in the above-captioned
action are consolidated in this Court with Claudio Soifer, et al. v. SD Second Avenue Member
LLC, et al., Index No. 654475/2021, pending in this Court; and it is further
ORDERED that the consolidation shall take place under Index No. 654475/2021 and the
consolidated action shall bear the following caption:
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SD Second Ave. Member LLC v SD Second Ave. Venture, LLC 2024 NY Slip Op 33073(U) September 3, 2024 Supreme Court, New York County Docket Number: Index No. 152270/2024 Judge: Joel M. Cohen 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. INDEX NO. 152270/2024 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 09/03/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M ----------------------------------------------------------------------------------- X
SD SECOND AVENUE MEMBER LLC, INDEX NO. 152270/2024
Plaintiff, MOTION DATE 06/03/2024 - V - MOTION SEQ. NO. 002 SD SECOND AVENUE VENTURE, LLC, SD SECOND AVENUE CS MEMBER, LLC, CLAUDIO SOIFER, SD SECOND AVENUE HOLDING, LLC, SD SECOND DECISION+ ORDER ON AVENUE PROPERTY, LLC,250 LEGACY HOLDINGS, MOTION LLC
Defendants. ----------------------------------------------------------------------------------- X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 002) 140, 141, 142, 143, 144, 145, 146, 147, 150, 151, 152, 153, 156, 157, 158, 159 were read on this motion to DISMISS
Defendants 250 Legacy Holdings, LLC ("250 Legacy"), SD Second Avenue CS Member,
LLC ("CS Member"), Claudio Soifer ("Soifer"), SD Second Avenue Venture, LLC ("SD
Venture"), SD Second Avenue Holding, LLC ("SD Holding"), and SD Second Avenue Property,
LLC ("SD Property") (collectively, "Defendants") move for an Order (a) pursuant to CPLR §
321 l(a)(4), dismissing the First and Second Causes of Action of the Verified Complaint
("Complaint") filed by Plaintiff SD Second Avenue Member LLC ("Plaintiff' or "JS Member");
(b) pursuant to CPLR § 602(a), consolidating the Complaint's Third, Fourth, and Fifth causes of
action for all purposes with the action currently pending in New York State Supreme Court, New
York County, styled Claudio Soifer, et al. v. SD Second Avenue Member LLC, et al., Index No.
152270/2024 SD SECOND AVENUE MEMBER LLC vs. SD SECOND AVENUE VENTURE, LLC ET Page 1 of 6 AL Motion No. 002
1 of 6 [* 1] INDEX NO. 152270/2024 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 09/03/2024
654475/2021 (the "Soifer Action"). 1 According to Defendants, JS Member's first and second
causes of action in the Complaint should be dismissed as admittedly duplicative of its
counterclaims in the Soifer Action.
Plaintiff partially opposed this motion (NYSCEF 153). Thereafter, the parties attempted
to resolve this motion by stipulation but they did not agree on the resolution of the first two
causes of action (NYSCEF 157-158). Accordingly, the Court will address this motion.
DISCUSSION
An action may be dismissed when "there is another action pending between the same
parties for the same cause of action in a court of any state or the United States; the court need not
dismiss upon this ground but may make such order as justice requires" (CPLR 3211 [a][4]). To
determine whether an action is subject to dismissal under that provision, New York courts
analyze whether there is substantial identity of the parties, whether the causes of actions are
"substantially similar," with a "critical element[] that both suits arise out of the same subject
matter or series of alleged wrongs." (Syncora Guar. Inc. v JP. Morgan Sec. LLC, 110 AD3d 87,
96 [1st Dept 2013] [citation omitted]). Dismissal on this ground is in the broad discretion of the
court (Whitney v Whitney, 57 NY2d 731, 732 [1982]).
Here, the parties in this Action and the Soifer Action are substantially the same. CPLR
321 l(a)(4) requires "substantial, not complete, identity of the parties." (Syncora Guarantee Inc.,
110 AD3d at 96). JS Member is the Plaintiff in this action and a Defendant in the Soifer Action.
1 The Soifer Action was previously consolidated for purposes of joint discovery and trial with the action currently pending in New York State Supreme Court, New York County, styled JS.I.K. International LLC, et al. v. Joshua Schuster et al., Index No. 650898/2023 (the "Karten Action")
152270/2024 SD SECOND AVENUE MEMBER LLC vs. SD SECOND AVENUE VENTURE, LLC ET Page 2 of 6 AL Motion No. 002
2 of 6 [* 2] INDEX NO. 152270/2024 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 09/03/2024
Additionally, all of the Defendants in this action except 250 Legacy are Plaintiffs in the Soifer
Action.
Further, JS Member's First and Second Causes of Action for breach of contract and
breach of fiduciary duty are substantially similar to the Counterclaims in the Soifer Action for
breach of contract and breach of fiduciary duty. Both are asserted against CS Member, allege
that CS Member breached the JV Agreement and breached its fiduciary duties as Managing
Member under the JV Agreement (compare NYSCEF 101 ["Counterclaims"] ,i,i 24-35 with
NYSCEF 1 ["Compl"] ,J,J 47-58).
As Plaintiff points out, the majority of Plaintiff's claims regarding CS Member's
mismanagement in this Action-which relate to a series of improper distributions made by
Defendants in the wake of Defendants' fraudulent conveyances-took place after the relevant
Answer with Counterclaims was filed in the Soifer Action. However, these allegations still arise
from same the underlying facts as the claims set forth in the Answer with Counterclaims. Given
these circumstances, the Court finds that dismissing the first and second causes of action without
prejudice to amending those causes of action in the Soifer Action to bring the allegations up to
date is appropriate. This will preserve resources and prevent inconsistent rulings.
Finally, Plaintiff does not oppose the portion of Defendants' motion which seeks
consolidation of the Complaint's Third, Fourth, and Fifth causes of action for all purposes with
the Soifer Action pursuant to CPLR 602(a), and therefore this request is granted.
Accordingly, it is
ORDERED that Defendants' Motion to Dismiss and Consolidate is GRANTED, and
Plaintiff's first and second causes of action are dismissed without prejudice to amending the
corresponding counterclaims in the Soifer Action; Plaintiff is granted to leave to amend its
152270/2024 SD SECOND AVENUE MEMBER LLC vs. SD SECOND AVENUE VENTURE, LLC ET Page 3 of 6 AL Motion No. 002
3 of 6 [* 3] INDEX NO. 152270/2024 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 09/03/2024
Answer and Counterclaims in the Soifer Action within twenty (20) days of the date of this Order
and may, if it chooses, file a Third-Party Complaint in the Soifer Action against 250 Legacy that
will relate back to the filing of its corresponding claim in this action; responsive pleadings shall
be filed within twenty (20) days thereafter; it is further
ORDERED that within seven (7) days of the responsive pleadings being filed, the parties
in the new consolidated Soifer Action and the Karten Action shall submit a proposed discovery
order to the Court; it is further
ORDERED that the Third, Fourth, and Fifth causes of action in the above-captioned
action are consolidated in this Court with Claudio Soifer, et al. v. SD Second Avenue Member
LLC, et al., Index No. 654475/2021, pending in this Court; and it is further
ORDERED that the consolidation shall take place under Index No. 654475/2021 and the
consolidated action shall bear the following caption:
CLAUDIO SOIFER; SD SECOND A VENUE VENTURE, LLC; SD SECOND A VENUE CS MEMBER, LLC; SD SECOND A VENUE HOLDING, LLC; and SD SECOND A VENUE PROPERTY, LLC.
Plaintiffs, -against-
SD SECOND A VENUE MEMBER LLC; JOSHUA SCHUSTER; 359 SECOND A VENUE GRAMERCY LLC; JVEM SIL VERBACK GRAMERCY LLC; SD SECOND A VENUE MANAGE LLC; SCHUSTER ENTERPRISES LLC; SILVERBACK ACQUISITIONS AND DEVELOPMENT LLC; 67 LIVINGSTONS LLC; and SILBER ACQUISITIONS LLC;
Defendants.
SD SECOND A VENUE MANAGER LLC, SD SECOND A VENUE MEMBER LLC, and JOSHUA SCHUSTER,
152270/2024 SD SECOND AVENUE MEMBER LLC vs. SD SECOND AVENUE VENTURE, LLC ET Page 4 of 6 AL Motion No. 002
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Counter-Claimants, -against-
CLAUDIO SOIFER, SD SECOND A VENUE VENTURE, LLC, SD SECOND AVENUE CS MEMBER, LLC, SD SECOND A VENUE HOLDING, LLC; and SD SECOND AVENUE PROPERTY, LLC;
Counterclaim-Defendants
AND IT IS FURTHER ORDERED that the pleadings in the actions hereby consolidated
shall stand as the pleadings in the consolidated action; and it is further
ORDERED that, within 30 days from entry of this order, movant shall serve a copy of this
order with notice of entry on the Clerk of the Court, who shall consolidate the documents in the
actions hereby consolidated and shall mark his records to reflect the consolidation; and it is further
ORDERED that counsel for the movant shall contact the staff of the Clerk of the Court to
arrange for the effectuation of the consolidation hereby directed; and it is further
ORDERED that service of this order upon the Clerk of the Court shall be made in hard-
copy format if this action is a hard-copy matter or, if it is an e-filed case, shall be made in
accordance with the procedures set forth in the Protocol on Courthouse and County Clerk
Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's
website); and it is further
ORDERED that, as applicable and insofar as is practical, the Clerk of this Court shall file
the documents being consolidated in the consolidated case file under the index number of the
consolidated action in the New York State Courts Electronic Filing System or make appropriate
notations of such documents in the e-filing records of the court so as to ensure access to the
documents in the consolidated action; and it is further
152270/2024 SD SECOND AVENUE MEMBER LLC vs. SD SECOND AVENUE VENTURE, LLC ET Page 5 of 6 AL Motion No. 002
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ORDERED that, within 30 days from entry of this order, movant shall serve a copy of this
order with notice of entry on the Clerk of the General Clerk's Office, who is hereby directed to
reflect the consolidation by appropriately marking the court's records; and it is further
ORDERED that such service upon the Clerk of the General Clerk's Office shall be made
in accordance with the procedures set forth in the aforesaid Protocol.
This constitutes the Decision and Order of the Court.
9/3/2024 DATE JOEL M. COHEN, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
152270/2024 SD SECOND AVENUE MEMBER LLC vs. SD SECOND AVENUE VENTURE, LLC ET Page 6 of 6 AL Motion No. 002
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