The 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
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Op 30001(U), are republished from various New York
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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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FILED: KINGS COUNTY CLERK 12/16/2024 09:25 AM INDEX NO. 517721/2024
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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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FILED: KINGS COUNTY CLERK 12/16/2024 09:25 AM INDEX NO. 517721/2024
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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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