Hersko v Hersko
2024 NY Slip Op 30034(U)
January 4, 2024
Supreme Court, Kings County
Docket Number: Index No. 510092/2021
Judge: Robin K. Sheares
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 01/05/2024 10 :48 AM] INDEX NO. 510092/2021
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 01/05 024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------X Index No.510092/2021
Barry Hersko,
Plaintiff(s), DECISION/ORDER
- against -
Motion Sequence No. 02
Denissi Hersko, et al.,
Defendant(s).
--------------------------------------------------------------------------X
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this Motion:
i"iYSCEF Documt:nl :-.:o:
Sequence II 02
Order to Show Cause/Notice or Motion and
Affidavits/Affirmations Annexed ll-35: 42
Exhibits 36-41
Opposition 46-47
Exhibits 48
Sripulalion Cancelling the Notice
of Pendency 50- 51
Reply 54
Defendants' move pursuant to CPLR §3211 (a)(l), (5) and (f) to dismiss the Amended complaint
dated November 28. 2021; pursuant to CPLR §650 I and §6514 (b) & (c ), and to cancel and discharge of
record the Notices of Pendency encumbering the following properties:
[i] 1322 59th Street, [1322 59th Street], Brooklyn, NY - Block 5712 Lot 9;
[ii] 1639 59th Street [1639 59th Street], Brooklyn, NY Block 5503 Lot 71; 1
[iii] 1368 58 th Street [1368 58 th Street], Brooklyn, NY - Block 5705, Lot 63; and
{Lv] 5023 15th Avenue, Unit 4 [5023 15 th Avenue] Brooklyn, NY - Block 5458, Lot 1108;
Defendants also seek attorneys' fees. Plaintiffs oppose.
Defendants' main assertions are that this matter should be dismissed, pursuant to CPLR
§3211 (a)(5), as Defendants did not engage in fraud and that the statute of limitations for fraud has
expired. In its opposition, Plaintiffs raise the question of when a justiceable controversy arose in this
By stipulation dated April 20, 2022, the plaintiffs and all appearing defendants agreed to vacate, cancel,
discharge the Notice of Pendency on 1639 59th Street and 5023 15 th Avenue.
1
[* 1] 1 of
!FILED: KINGS COUNTY CLERK 01/05/2024 10: 48 AM) INDEX NO. 510092/2021 ·~
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 01/05/2024
matter. Only until the question of when a justiceable controversy arose is determined, can a
determination as the statute of limitations and the statute of frauds be made. Therefore, as to the
allegations of fraud and statute of limitations, the Court finds that Plaintiffs' opposition raises a question
of fact which cannot be determined on a motion to dismiss.
Furthem1ore, Defendants assert that this matter should be dismissed, pursuant to CPLR
§321 l(a)(l}, as the "'defense is founded upon documentary evidence.". A motion made pursuant to
CPLR §3211 (a)(l) must by documentary evidence "utterly refute" the plaintiffs' a1legations and
established a defense as a matter of law. Goshen v Mut. Life Ins. Co., 98 NY2d 314 [2002]. In this case
involving family affairs, documentary evidence simp1y cannot determine whether a cause of action exist
in the amended complaint when it is the evidence itself that has brought about the cause of action.
Therefore, the Court will not dismiss this action pursuant to CPLR §321 l(a)(l).
In reviewing the Amended Complaint, the general rule in New York State is that pleadings shall
be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced CPLR
§3206. A motion pursuant to CPLR §3211 (a)(7) for failure to state a cause of action, like that of CPLR
§3211 (a)(l) is generally not granted due to the rule of liberal construction of the pleadings. People v
Coventry First LLC, 13 NY3d I 08 [2009] (Breach of Fiduciary Duty), Simkin v. Blank, 19 NY3d 46
[2012].
In regards to the individual causes of action, the Court makes the following determinations:
First Cause of Action
Declaratory Judgment against Denissi Hersko - HFR Membership
The First cause of Action is NOT stricken. The Court finds that whether Denissi Hersko holds a
bona fide membership interest in HFR and/or whether that membership interest should be void is
sufficiently pleaded.
2
[* 2] 2 of 5
!FILED: KINGS COUNTY CLERK O1/ 0 5 /2 02 4 10: 4 8 AM) INDEX NO. 510092/2021
NYSCEF DOC. NO. 73
RECEIVED NYSCEF: 01/05/2024
Second Cause of Action
Declaratory Judgement against Denissi Hersk- Forged Deed
The Second Cause of Action is NOT stricken. The Court finds that it is a question of fact as to
whether Defendant Denissi forged the deed. Furthermore. the time in which a party may commence an
action for fraud ··shall be the greater of six years from the date the cause of action accrued or two years
from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could
with reasonable diligence have discovered it." CPLR§2 l 3(8). The Court finds that it is a question of
fact as to \\'hen Plaintiff discovered the alleged fraud; when Defendant Denissi repudiated on her promise
or prior to that time.
Third Cause of Action
RPAPL Article 15 to Cancel Deed as to 1322 59 th Street - Against Denissi
The Third Cause of Action is NOT stricken. The Court finds that whether the deed was
fraudulent, whether the transfer of said deed unauthorized, and whether Defendant Denissi gained title
to the premises located at 1322 59th Street fraudulently is a question of fact. Again, the Court notes that
the determination of when the applicable statute of limitations is a question of fact.
Fourth Cause of Action
Constructive Trust as to 1322 59 th Street Against Denissi
The fourth cause of Action is NOT stricken. The Court finds that there is a question of fact as to
whether a constructive trust exists.
Fifth Cause of Action
Unjust Enrichment against Denissi as to 1322 59th Street
The Fifth Cause of Action is NOT stricken. The Court finds that there is a question of fact as to
whether or not Defendant Denissi was unjustly enriched.
Sixth Cause of Action
Breach of Contract against Denissi, Malky, and Yidi re: 1322 59th Street
The Sixth Cause of Action is NOT stricken. The Court finds that there is a question of fact as to
whether there was a contract and whether there was a breach of said contract.
3
[* 3] 3 of 5
[FILED: KINGS COUNTY CLERK 01/05/2024 10:48 AM] INDEX NO. 510092/2021.
NYSCEF DOC. NO. 73
RECEIVED NYSCEF: 01/05/2024
Seventh Cause of Action
Breach of Fiduciary Dut)· against Denissi re: 1322 59•h Street
The Seventh Cause of Action is NOT stricken. The Court finds that there is a question of fact as
to whether there was a fiduciary duty and whether there was a breach of that duty.
Eighth Cause of Action
RP APL Article 15 to Cancel Deed against Denissi and toby re: 1368 58 th Street
The Eighth cause of Action is NOT stricken. The Court finds that whether the deed was
fraudulent, whether the transfer of said deed was unauthorized, and whether Defendants Denissi and
Toby gained title to the premises located at I 368 58 1h Street fraudulently is a question of fact. Again,
the Court notes that the determination of when the applicable statute of limitations began to run is a
question of fact.
Ninth Cause of Action
Constructive Trust against Denssi and Toby re: 1368 58 th Street
The Ninth Cause of Action is NOT stricken. The Court finds that there is a question of fact as to
whether a constructive trust exists.
Tenth Cause of Action
Breach of Fiduciary Duty against of Denissi re: 1368 58 th Street
The Tenth Cause of Action is NOT stricken. The Court finds that there is a question of fact as
to whether there was a fiduciary duty and as to whether Defendant Denissi breached that duty.
EleYenth Cause of Action
Unjust Enrichment against Denissi and Toby re: 1638 58 1h Street
The Eleventh Cause of Action is NOT stricken. The Court finds that there is a question of fact
as to whether Defendants Denissi and Toby were unjustly enriched.
Twelfth Cause of Action
Breach of Contract against Lefkowitz re: the Condo
The Twelfth Cause of Action is NOT stricken. The Court finds that there is a question of fact as
to whether there was a breach of contract.
4
4 of 5
[* 4]
[FILED: KINGS COUNTY CLERK 01/05/2024 10:48 AM] INDEX NO. 510092/2021
NYSCEF DOC. NO. 73
RECEIVED NYSCEF: 01/05/2024
Thirteenth Cause of Action
Breach of Contract against Rivky re: the Condo
The Thirteenth Cause of Action is NOT stricken. The Court finds that there is a question of fact
as to whether there was a contract and whether there was a breach of said contract.
Fourteenth Cause of Action
Declaratory Judgement against MEHE and Denissi
The fourteenth Cause of Action is NOT stricken. The Court finds that there is a question of fact
regarding MEHE relevancy to this matter and concerning MEHE membership.
Furthermore, based on the papers submitted. and after oral arguments. Defendant's contention
that plaintiffs have not commence or prosecuted this action in good faith pursuant to CPLR §65 l 4(b)
absolutely cannot be determined at this time. The Court finds that it is a question of fact as to whether
or not Plaintiff commenced or prosecuted this action in good faith. Therefore, the court will not direct
the clerk to cancel the notices of pendency on the properties 1322 59th Street and 1368 58 th Street.
Since the court is not cancelling the notices of pendency, costs and expense pursuant to CPLR
§6514(c) are denied at this time.
Therefore, based on the above, Defendants· motion to dismiss the Amended Complaint is
DENIED. The Court finds that all fourteen (14) of Plaintiffs' causes of action are sufficiently pleaded,
the Notices of Pendency ARE NOT vacated. and the application for attorney fees and costs is DENIED.
This constitutes the Decision/Order of the Court.
·"'-.,_
Dated: January 4, 2024 ENTER:
For clerks use only
MG
MD✓
Motion Seq. # 02
5
[* 5] 5 of 5