The opinion
Pfanner v Anderson
2024 NY Slip Op 34007(U)
November 12, 2024
Supreme Court, Kings County
Docket Number: Index No. 509781/2024
Judge: Leon Ruchelsman
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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publication.
FILED: KINGS COUNTY CLERK 11/12/2024 01:32 PM INDEX NO. 509781/2024
NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/12/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8
------ --- ------- -- - ---- .. - .-·- -·-- -·--- .· . --- -x
ANDREAS PFANNER, POK MILL, LLC, and
POKl-3 GRAND Ll,C,
Plaintiff, Decision ahd order
- against - Index No,· 509781/2024
ERIC GUSTAVE ANDERSON, URBAN GREEN
EQUITIES, LLC; POK MILL HOUSING
DEVELOPMENT FUND CORPORATION, POK 325
MAIN LLC; WALLACE CAMPUS MAN,AGER LLC:,
Defendants, November 12, 2024
-------... ·--· -·-----. ---- •· ---------------·x.
ERIC G. ANDERSON, individually arid as the
Winding-Up Partner of the PFANNER,/ANDERSO}l
GENERAL, PARTNERSHIP,
Counter.,-Plaintiffs,
-against-
ANDREAS PFANNER,
Counter-De.fendant,
---- ---- .· - . ---- --- -- - - - - . _____ . - X
PRESENT: HON. LEON RUCHELSMAN Motion .Seq. #12 and #15
The defendant/counterclaim plaintiff Eric .Anderson has moved
$eeking to conditionally di smis•s pJ.aintiff' s claims until he appears for
a deposition. Further, the movarit also seeks to consolidate this action
with three either actions, namely P fanhe r v. Anders on, Index.. No.
509789/2024, Anderson o/b/o Partnership v, Pfanner; Index Nci.
518712/2024, and POK Mill LLC v .. Pfanner, Index No. 519488/2024. The
plaintiff has oppos:ed the motions. Papers were submitted by the parties
after reviewing all the arguments this court riow makes the following
determination.
The facts have been adequately .detailed iri prior .orders and need not
·be r~peated here.
£6riclusibns of Law
The motion seeking to conditionally dismiss the case is denied.
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FILED: KINGS COUNTY CLERK 11/12/2024 01:32 PM INDEX NO. 509781/2024
NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/12/2024
Conditional dismissal is riot appropriate where the plaintiff, although
he may have refused to appear for a deposition, did not wilfully violate
multiple court orders (see, Badame v. Zaret, 2020 WL 13158272 (Supreme
Court Nassau County 20201) .
Turning to the motion seeking consolidation, it is well settle·ct that
when two case.s represent common questions of law or fact then there
should be a .consolidation (Moses v. B & E Lorge Family Trust, 147 AD3d
1043, 48 NYS3d 427 [2d Dept;, 201 7]) . A party objecting to the
consolidation has the burden o-f demonstrating prejudice which harms a
substantial right (Oboku v. New York City Transit Authority; 141 AD3d
708, 35· NYS3d 710 [2d Dept., 2016]),
The amended complaint in this action alleges that the plaintiff
Pfanner and defendant Anderson entered into joint ventures together to
purchase real estate. The joint ventures purchased five properties,
three in Poughkeepsie New York and two in California. Each purcha;se was
executed by a corporation established for that specific purpose including
a corporation called POK Mill LLC. These entities were equally owried by
the plaintiff and the defendant. While the amended complaint does not
really describe ahy specific t:ortious conciuct committed by the defendant
it does allege in conclusory fashion that "Eoxtensive misappropriation,
emb.ezzlement and misdirection of the capital furnished by the Plaintiff,
as well as the revenue income generated from.the properties, as herein
mentioned" {see, .Am.ended Complaint 'US [NYqCEF Doc. No. 28]). The.
amended complaint does not describe the actuaL way in which the deferidant
allegedly embezzled funds or how he facilitated such embezzlement. The
amended complaint in Pfa:hner v. Ander·son, Index No. 509789/2024 alleges
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FILED: KINGS COUNTY CLERK 11/12/2024 01:32 PM INDEX NO. 509781/2024
NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/12/2024
that Anderson, through a corporation wholly owned by him, purchased the
pr.operty located at 325 M-i"il Street .Ln. Poughkeepsie fr.om c1. third party
without informing the plaintiff and. vio.hiting the. j_oin.t venture
agt:eement. That property was purchased through an entity· call"ed: POK 235'
1'1.ain LLC. The amended complaint alleges the defendant purchased this
property from funds he embezzled from the other jointly owned ·entities
wi thol,lt informing the. pla"intif f and .then. -r.es9ld i t for ·an :undisclosed
sum_.
The action Anderson o/b/o Pa·-rtne-rship v-_. Pfanner·, I.ndex No.
518712/2024 is essentially an action alleging that Pfahne:t violated the
_partnership agreements. Indeed, the complaint in that action
·in.corporates tbe counter-claims Ji led in thi_s ,action ( s·ee·, Ve:i;'.i.fied LLC
Membe··r. Derivative .Cornpli;1.int:, '.1(7 in Anders_on o/b/o Partner~n,ip v._ Pfanner,.
Index -~iJ"o. 518712/t0:2~ [.N.Y-S.CEF Doc. Nq_. i] )...
Finally, POK Mill LL,C v. Pfanner, Inde><: No. 519488/202~ -1:s about
whether Pfanner breached a: guaranty he signed by filing a petition to
dis.solve POK Mill LLC. Although that lawsuit was filed derivat:ively, the
es.sence o'f the law·sui t ls simply a claim against Pfanne:t and ·the mere
fact it is derivative :shou:I.d n:ot prevent consolidation.-
Thus, the four lawsuits clearly concern the s.ame qµestions of law
and fact, -namely wh.ether any improprieties were cprrtmi tted by the
plaintiff and/or the defendant. All four cases conce,rn the same
entities, the s:ame- i"ndi viduals and a:te all really -~lairns and
cotinterclaiins. agalti-st each other. The me:te f.act some ·of the a_ctio_ns
contain addi tionai allegati.oris o·f wrongdoing that is not included in the
others doe.s riot render the actions so different that consolidation would
be an inappropriate abuse of discretion (see.,. St James Plaza v. Notey,
166 AD2d 43·9;- 5-60. NYS2d 670 I_ 2d Dept., 1990]) ..
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FILED: KINGS COUNTY CLERK 11/12/2024 01:32 PM INDEX NO. 509781/2024
NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 11/12/2024
It is true that it would be improper to cdnsolidate these actions
since such consqlidation wouLd place each party as a plaintiff and a
de£endant in one consolidated .:i.ction (M&K · Computer Corp., v. MES
Industries Inc., 271 AD2d 660, 706 NYS2d 194 [2d Dept., ·2000] .) , an
obvious impos s ihi l ity. Neverthel Eis s., consolidation, or more accurately
a 'joint trial' order is proper so that all discovery may take place in
one venue and all substa,ntive motions can be decided in one court.
Therefore, based on the foregoing the motion seeking to consolid.ate
these cases for purposes of joint trial is granted. The clerk is
directed to consolidate this atticih with Pfannet v. Anderson, Index No.
509789/2024, Anderson o/b/o Partnership v. Pfariner, Index NO.
518712/2024, and POK Mill LLC v. Pfanner, Index No. 519488/2024 for
purposes. of joint trial.
so ordered.
ENTER:
DATED: November 12, 2024
Brooklyn N. Y. Hon. Leah Ruchelsman
JSC
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