WA Rte. 9, LLC v. PAF Capital LLC

2025 NY Slip Op 30861(U)

• Court: New York Supreme Court, New York County
• Decided: March 17, 2025
• Docket: Index No. 651688/2012
• Status: Unpublished

Opinion

WA Rte. 9, LLC v PAF Capital LLC 2025 NY Slip Op 30861(U) March 17, 2025 Supreme Court, New York County Docket Number: Index No. 651688/2012 Judge: Andrew Borrok 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. 651688/2012 NYSCEF DOC. NO. 456 RECEIVED NYSCEF: 03/17/2025

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53 -----------------------------------------------------------------------------------X WA ROUTE 9, LLC, INDEX NO. 651688/2012

Plaintiff, 02/13/2025, MOTION DATE 02/14/2025 -v- PAF CAPITAL LLC,JACOB FRYDMAN, DAVID MOTION SEQ. NO. 016 017 LICHTENSTEIN, PAF CAPITAL, LLC. (4TH PARTY DEFT.), THE LIGHTSTONE GROUP (4TH PARTY DEFT.), DECISION + ORDER ON LIGHTSTONE VALUE PLUS REAL ESTATE INVESTMENT TRUST INC. (4TH PARTY DEFT.), MOTION LIGHTSTONE VALUE PLUS REAL ESTATE INVESTMENT TRUST INC.II (4TH PARTY DEFT.), LIGHTSTONE VALUE PLUS REIT LP (4TH PARTY DEFT.), ADAM FRIEDMAN, ADAM FRIEDMAN ASSOCIATES LLC. (4TH PARTY DEFT.)

Defendant. -----------------------------------------------------------------------------------X

HON. ANDREW BORROK:

The following e-filed documents, listed by NYSCEF document number (Motion 016) 429, 430, 431, 445, 448, 449, 451 were read on this motion to/for SUBST/RELIEVE/WITHDRAW COUNSEL .

The following e-filed documents, listed by NYSCEF document number (Motion 017) 433, 434, 435, 436, 437, 438, 446, 447, 450, 452, 453, 454 were read on this motion to/for PRECLUDE .

Trial in this case bearing a 2012 index number has been set for April 21, 2025. Any stay or

delay in this case at this stage would cause substantial prejudice. Thus, Jacobs P.C.’s motion

(Mtn. Seq. No. 016) to withdraw as counsel for Jacob Frydman is GRANTED but the case is not

however stayed. Mr. Frydman may proceed pro se or with counsel of his choice (including the

attorney who observed oral argument today or anyone else).

David Lichenstein and PAF Capital, LLC (collectively, PAF)’s motion in limine (Mtn. Seq. No.

017) is GRANTED solely to the extent that the Mr. Frydman may not introduce into evidence 651688/2012 WA ROUTE 9, LLC vs. PAF CAPITAL LLC Page 1 of 4 Motion No. 016 017

1 of 4 [* 1] INDEX NO. 651688/2012 NYSCEF DOC. NO. 456 RECEIVED NYSCEF: 03/17/2025

documents not produced in discovery (even if the proposed exhibits were identified by

hyperlinks in the Press Releases but were otherwise not produced) and he is otherwise required

to establish a proper foundation for the introduction of the various pieces of evidence that he

seeks to introduce. This necessarily includes establishing the Defendants role in republishing the

defamatory statements (i.e., that they approved or participated in some manner of the

republication; Geraci v Probst, 15 NY3d 336, 343 [2010] citing Karaduman v Newsday, Inc., 51

NY2d 531, 540 [1980]). As to any document that he can not do that, it is inadmissible.

According to PAF none of the following documents were produced in discovery:

(i) URTI Consolidated Statement of Equity (Unaudited) for the Three Months Ended March 31, 2014 (PX001), (ii) An e-mail correspondence between a certain Mitch Morrison and Rick Vitale (PX003, PX014), dated November 21, 2013 and November 22, 2013, (iii) a Buttonwood Investment Services, LLC document outlining their services, program review, and ongoing due diligence (PX017), (iv) FactRight Report Distribution Request Form (PX023), (v) an e-mail from Andy Friedman with the subject line: Martin Bell Management Questionnaire (PX043), dated April 18, 2013, and (vi) a URTI Consolidated Statements of Operations for the three Months Ended March 31, 2014 (PX067).

If Mr. Frydman can not demonstrate they were in fact produced, they are inadmissible at trial.

For the avoidance of doubt, the alleged defamatory statements included that Mr. Frydman

committed fraud in connection with his personal guaranty of a $12 million that PAF capital made

to McDonald and the alleged libelous statement that Mr. Frydman had provided to PAF Capital

what they now believe were fraudulent financial statements to induce settlement. These

misstatements were alleged to have been included in the Press Releases.

The Court has considered Mr. Frydman’s remaining arguments and finds them unavailing.

651688/2012 WA ROUTE 9, LLC vs. PAF CAPITAL LLC Page 2 of 4 Motion No. 016 017

2 of 4 [* 2] INDEX NO. 651688/2012 NYSCEF DOC. NO. 456 RECEIVED NYSCEF: 03/17/2025

Accordingly, it is hereby ORDERED that the motion (Mtn. Seq. No. 016) of Jacobs P.C. to be

relieved as attorney for Mr. Frydman is granted to the extent set forth above, upon filing of proof

of compliance with the following conditions; and it is further

ORDERED that, by March 24, 2025, said attorney shall serve a copy of this order with notice of

entry upon the former client at their last known address by e-mail and overnight mail, and upon

the attorneys for all other parties appearing herein by posting to the New York State Courts

Electronic Filing System; and it is further

ORDERED that, together with the copy of this order with notice of entry served upon the former

client, moving counsel shall forward a notice directing the former client to appear pro se or

appoint a substitute attorney no later than April 1, 2025 and the client shall comply therewith,

and it is further

ORDERED that any new attorney retained by Mr. Frydman shall file a notice of appearance with

the Clerk of the General Clerk’s Office (60 Centre Street, Room 119) and the Clerk of the Part

no later than April 1, 2025; and it is further

ORDERED that the departing attorney shall, by March 25, 2025, serve a copy of this order with

notice of entry on the Clerk of the General Clerk’s Office (Room 119); and it is further

ORDERED that such service upon the Clerk of the General Clerk’s Office, the filing of a notice

of appearance as provided herein, and the filing of papers as aforesaid shall be made in

651688/2012 WA ROUTE 9, LLC vs. PAF CAPITAL LLC Page 3 of 4 Motion No. 016 017

3 of 4 [* 3] INDEX NO. 651688/2012 NYSCEF DOC. NO. 456 RECEIVED NYSCEF: 03/17/2025

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 the branch of the motion seeking a stay is denied; and it is further

ORDERED that PAF’s motion (Mtn. Seq. No. 017) in limine is GRANTED to the extent set

forth above; and it is further

ORDERED that the parties must submit a witness list no later than March 31, 2025 and must

otherwise agree on a total time for trial; and it is further

ORDERED that the parties appear for a SC on April 1, 2025, at 11 am.

3/17/25 DATE CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

651688/2012 WA ROUTE 9, LLC vs. PAF CAPITAL LLC Page 4 of 4 Motion No. 016 017

4 of 4 [* 4]