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FILED: KINGS COUNTY CLERK 06/25/2024 05:06 PM INDEX NO. 501280/2021
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/25/2024
EXHIBIT A
FILED: KINGS COUNTY CLERK 06/25/2024
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NYSCEF DOC. NO. 102
65 RECEIVED NYSCEF: 06/25/2024
07/12/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
_____________________------X
ELI SHOUELA,
Index No. 501280/2021
Plaintiffs,
NOTICE OF MOTION
-against-
ISAAC SHOUELA, and 1515 CHURCH AVENUE
REALTY, LLC,
Defendants.
------___________________________Ç
PLEASE TAKE NOTICE, that upon the Affidavit of Eli Shouela, sworn to on July 11, 2023, the
Affirmation of Bradley R. Siegel, Esq., affirmed on July 11, 2023, the exhibits annexed thereto,
and upon all the pleadings and proceedings heretofore had herein, the undersigned will move
before this Court, at the Supreme Court of the State of New York, County of Kings, located at 360
Adams Street, Brooklyn, New York 11201, in Civil Term Commercial 8 on August 3, 2023 at
9:30 a.m., or as soon thereafter as counsel may be heard, for an Order granting Plaintiff's motion,
and awarding relief as follows:
a. Pursuant to CPLR §3025, granting Plaintiff leave to amend the Verified
Complaint; and
b. Vacating the Stipulation dated January 9, 2023 and So-Ordered on march 23,
2023 to the extent of preserving Plaintiff's rights for constructive trust and
conversion claims related to Church Realty and to seek dissolution of Church
Realty in connection with Plaintiff's constructive trust claims; and
c. Such other and further relief in favor of Defendant as this Court may deem just,
proper, and equitable.
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §2214(b), opposition
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papers, if any, to this motion, are to be served upon the undersigned at least seven (7) days prior
to the return date of this motion.
Dated: July 11, 2023 Respectfully submitted,
Garden City, New York
Bradley R. Siegel, Esq.
THE SIEGEL LAW FIRM, P.C.
Attorneys for Plaintiff
591 Stewart Avenue, Suite 400
Garden City, NY 11530
T: (516) 558-7559
F: (888) 315-8363
To: Petrocelli Law, PLLC
52nd
322 W. Street, #2256
New York, NY 10019
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
_____________________________________-----------...______x
ELI SHOUELA, Index No.: 501280/2021
Petitioner,
AFFIDAVIT IN SUPPORT
-against-
ISAAC SHOUELA, and 1515 CHURCH AVENUE
REALTY, LLC,
Respondents.
---------------------------------------------X
STATE OF NEW YORK )
) SS.:
COUNTY OF NASSAU )
ELI SHOUELA, being duly sworn, deposes and says:
1. I am the Plaintiff in the above-entitled action, and as such I am fully familiar with
the facts and circumstances of this action.
2. This affidavit is respectfully submitted in support of Plaintiff's motion, for leave
to amend the Complaint and vacating the stipulation dated January 9, 2023 and So-Ordered on
March 23, 2023.
3. This action was commenced via filing of a Summons and Complaint on January
18, 2021. A copy of the Summons and Complaint is annexed hereto as Exhibit "A".
4. On or about December 2, 2022, Defendant filed an Order to Show Cause seeking
to cancel and vacate the notice of pendency filed against the real property located at 1515 Church
Avenue, Brooklyn, NY 11226 (the "Church Avenue Premises"). A copy of the Defendant's
Order to Show Cause filed on or about December 2, 2022 is annexed hereto as Exhibit "B".
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5. On January 9, 2023, my former attorney, John Lehr, executed a Stipulation of
partial discontinuance. A copy of the Stipulation of partial discontinuance is annexed hereto as
Exhibit "C".
6. Pursuant to the terms of the Stipulation of Discontinuance, all causes of action
against defendant Isaac Shouela relating to 1515 Church Avenue Realty LLC and the Church
Avenue Premises were discontinuedwithprejudice, including the First Cause of Action in its
entirety, the Second Cause of Action in its entirety, the Third Cause of Action in its entirety, the
Fourth Cause of action in its entirety, and the portion of the Eighth Cause of Action as it relates
to the Church Avenue Premises.
7. Prior to my prior attorney executing the Stipulation of partial discontinuance, I
forwarded to him an e-mail expressly stating that the withdrawal of any action should be made
without prejudice, so that I would not be precluded from raising such claims in the future. A
copy of e-mail correspondence to my previous attorney dated January 9, 2023 is annexed hereto
as Exhibit "D".
8. Despite my request that any withdrawn claims be made without prejudice, shortly
after the Stipulation of partial discontinuance was executed, I became aware that the Stipulation
of partial discontinuance withdrew claims with prejudice.
9. After retaining my current attorneys, I became aware that I had constructive trust
claims as it relates to 1515 Church Realty LLC ("Church Realty").
10. Because I did not grant my previous attorney authority to withdraw the Church
Realty claims with prejudice, and expressly stated any claims should be withdrawn without
prejudice, it would be inequitable for me to be precluded from maintaining these claims, when I
specifically intended to preserve such claims.
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11. Based on the foregoing, it is respectfully requested that the Court vacate the
Stipulation of partial discontinuance to the extent of pennitting judicial dissolution claims in
connection with my constructive trust claims against Church Realty, as set forth in the proposed
Amended Complaint, as more fully described herein, and in the Affirmation of my counsel.
12. I also respectfully request that the Court grant me leave to amend the complaint.
A copy of the proposed amended complaint is annexed hereto as Exhibit "E".
13. In the proposed Amended Complaint, I seek to add causes of action for
constructive trust for Church Realty, as my membership interest was transferred at the behest of
defendant Isaac Shouela ("Isaac"), who promised me that he would return my interest at a later
date. I trusted and believed him based on our close familial relationship as brothers.
Unfortunately, Isaac breached that trust, and refuses to return my membership interest in Church
Realty, despite my demands, resulting in Isaac being unjustly enriched at my expense.
14, I also seek to add causes of action for fraudulent misrepresentation, partition,
conversion, and voidable transfer.
15. The claim for fraudulent misrepresentation stems from Isaac knowingly making
false promises to me that I should transfer my interest in the subject real properties and Church
Realty, and that he would return them to me at a later date. Isaac made these false promises to
me knowing that he would not return my interest to me, and as a means to enrich himself. The
claim for conversion relates to Isaac converting my interest in Church Realty to himself.
22nd
16. My name was on the deeds and mortgages for 1821 East Street, Brooklyn,
218t 22nd 8th
NY, 1946 East Street, Brooklyn, NY, 1797 East Street, Brooklyn, NY, 1728 East
Street, Brooklyn, NY, and I was a member of Church Realty, which held the deed to 1515
Church Avenue, Brooklyn, NY.
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17. I am also asking the court to allow me to file a claim for partition after my interest
in the subject real properties are returned to me. It is apparent that I cannot trust Isaac and that it
would be impossible for the two of us to jointly maintain the subject real properties together.
Thus, these properties must be sold.
18. After this action had been commenced, Isaac transferred his interest in the real
8th 802
property located at 1728 East Street, Brooklyn, NY ("1728 East Street") to an LLC that he
formed, 1728 E 8 LLC. Upon information and belief, this transfer was made in an effort to block
8th
my attempts to recover in this action. Since Isaac transferred 1728 East Street to his LLC, it
is further requested that 1728 E 8 LLC be named as a party to this action as well.
19. For all of the forgoing reasons, it is respectfully requested that the Court grant
Plaintiff's application to amend the complaint.
20. No previous application has been made to this or any other court for the relief
requested herein.
Ê I SHOUELA
Sworn before me on this
11th
day of uly, 2023
Notary Public /
MICHAEL ERIC KUPFERBERG
NOTARY PUBLIc - sTATE OF NEW YORK
No. 02KU6308567
Qualmed inNassauCounty
My Commission Expires July 28, 20_
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------_______________________________________Ç
ELI SHOUELA,
Plaintiff, Index No.: 501280/202I
-against-
AFFIRMATION IN
SUPPORT
ISAAC SHOUELA, and 1515 CHURCH AVENUE
REALTY, LLC
Defendant.
-------____________-------------_________Ç
BRADLEY R. SIEGEL, ESQ, an attorney duly admitted to practice law before the Courts
of the State of New York, affirms under penalty of perjury:
1. I am the principal of The Siegel Law Firm, P.C., attorneys for the Plaintiff, ELI
SHOUELA ("Plaintiff") in the above-entitled action, I am fully familiar with the facts and
circumstances of this case based upon a review of the file maintained by my office and
communications with my client. This is not a frivolous motion and the statements of fact are not
false.
2. This Affirmation is submitted in support of Plaintiff's Motion requesting that Plaintiff be
granted leave to amend the Verified Complaint pursuant to CPLR §3025, and serving the Amended
Verified Complaint upon the the dated 2023 and So-
Defendant; vacating Stipulation, January 9,
Ordered on March 23, 2023 to the extent of preserving Plaintiff's rights for constructive trust and
conversion claims related to Church Realty and to seek dissolution of Church Realty in connection
with his constructive trust claim as more fully set forth herein; and such other and further relief
deemed just and proper in favor of Plaintiff as this Court may deem just, proper, and equitable.
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BACKGROUND
3. Plaintiff commenced this action by filing a Summons and Verified Complaint on
January 18, 2021 (the "Complaint"). A copy of the Summons and Verified Complaint is annexed
hereto as Exhibit "A".
4. Plaintiff's Complaint contains eight causes of action, to wit:
i) A declaratory judgment that Plaintiff is a 50% member of Church Avenue Realty
LLC ("Church Realty");
ii) A judicial dissolution of Church Avenue Realty, LLC;
iii) Breach of fiduciary duty related to mismanagement of the day-to-day operation of
Church Avenue Realty;
iv) An accounting;
v) Unjust enrichment;
vi) Constructive trust;
vii) Promissory estoppel; and
viii) Temporary and permanent injunction.
5 On or about December 2, 2022, Defendant filed an Order to Show Cause seeking to
cancel and vacate the notice of pendency filed against the real property located at 1515 Church
Avenue, Brooklyn, NY 11226 (the "Church Avenue Premises"). A copy of the Defendant's Order
to Show Cause filed on or about December 2, 2022 is annexed hereto as Exhibit "B".
6. Although the Defendant's Order to Show Cause does not seek withdrawal of any
causes of action, on or about January 9, 2023, Plaintiff's then counsel, John Lehr, executed a
Stipulation of partial discontinuance, and cancellation of the Notice of Pendency filed against the
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Church Avenue Premises (the "Stipulation of Discontinuance"). A copy of the January 9, 2023
stipulation is annexed hereto as Exhibit "C".
7. Pursuant to the terms of the Stipulation of Discontinuance, all causes of action against
defendant Isaac Shouela relating to 1515 Church Avenue Realty LLC and the Church Avenue
Premises were discontinued with prejudice, including the First Cause of Action in its entirety, the
Second Cause of Action in its entirety, the Third Cause of Action in its entirety, the Fourth Cause of
action in its entirety, and the portion of the Eighth Cause of Action as it relates to the Church Avenue
Premises.
8. For all of the reasons set forth below, the Stipulation of Discontinuance should be
vacated, in part to the extent of preserving Plaintiff's right to seek judicial dissolution of the Church
Avenue Premises in connection with Plaintiff's constructive trust claims as more fully set forth
herein, and Plaintiff should be granted leave to amend the Complaint.
PLAINTIFF SHOULD BE GRANTED LEAVE TO AMEND THE VERIFIED COMPLAINT
9. It is well settled that leave to amend a pleading shall be freely granted under CPLR
§3025(b), where the proposed amendment is neither palpably devoid of merit and will not result in
surprise or prejudice to the opposing party. See Old World Custom Homes, Inc. v. Crane, 33 A.D.3d
600, 822 N.Y.S.2d 155 (2d Dep't 2006). Leave should be denied only when the proposed amendment
plainly lacks merit or a substantial question exists as to its sufficiency. Furthermore, there is no
prejudice due to the mere omission to plead a claim, defense, or counterclaim in an original pleading.
See Schlossberg v. Varjabedian, 2005 NY Slip Op 50260U, 800 N.Y.S2d 356, (Civ. Ct. N.Y. Cnty.
2005).
10. To defeat a motion for leave to serve an amended pleading, the party opposing the
amendment must demonstrate "some special right lost in the interim, some change of position or
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some significant trouble or expense that could have been avoided had the original pleading contained
add."
what the amended one now wants to Siegel, New York Practice (4th) § 237; See also Fulford
v. Baker Perkins, Inc., 100 A.D.2d 861, 474 N.Y.S.2d 114 (2d Dep't 1984); Wyso v. City of New
York, 91 A.D.2d 661, 457 N.Y.S,2d 112 (2d Dep't 1982).
11. The Plaintiff is seeking to include a cause of action against defendant Isaac Shouela
("Isaac") for constructive trust as it relates to 1515 Church Avenue Realty LLC, fraudulent
misrepresentation, partition, conversion, and voidable transfer, as well as adding 1728 E 8 LLC as a
"E"
defendant. Annexed hereto as Exhibit is a copy of the proposed Amended Complaint.
12. The proposed Amendment to the Verified Complaint is with merit and will not result
in surprise or prejudice to the Defendant. The Complaint already makes constructive trust claims in
connection with real property where Plaintiff was previously named as owner on several deeds to real
property. Further, the facts surrounding the cause of action for fraudulent inducement were aheady
pleaded and will not act as a surprise to Isaac. The Complaint also previously sought dissolution of
the 1515 Church Avenue Realty LLC. There should be no surprise that upon being named an owner
to the subject real properties that Plaintiff would seek to partition those properties. The cause of
action for voidable transfer and adding of 1728 E 8 LLC as a defendant arose after Isaac transferred
8d'
1728 East Street to his own LLC after the filing and service of the summons and complaint
commencing this action.
13. Moreover, discovery is only in its infancy, with depositions not yet having been
completed, and Defendant will not lose any right in the interim or accrue any additional expense as a
result of the proposed amendments to the Complaint.
14. Based upon the foregoing, Plaintiff's application to amend the Verified Complaint to
add a Cause of Action for constructive trust related to Church Realty, causes of action for fraudulent
Preview
FILED: KINGS COUNTY CLERK 06/25/2024 05:06 PM INDEX NO. 501280/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/25/2024 EXHIBIT A FILED: KINGS COUNTY CLERK 06/25/2024 07/12/2023 05:06 01:18 PM INDEX NO. 501280/2021 NYSCEF DOC. NO. 102 65 RECEIVED NYSCEF: 06/25/2024 07/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _____________________------X ELI SHOUELA, Index No. 501280/2021 Plaintiffs, NOTICE OF MOTION -against- ISAAC SHOUELA, and 1515 CHURCH AVENUE REALTY, LLC, Defendants. ------___________________________Ç PLEASE TAKE NOTICE, that upon the Affidavit of Eli Shouela, sworn to on July 11, 2023, the Affirmation of Bradley R. Siegel, Esq., affirmed on July 11, 2023, the exhibits annexed thereto, and upon all the pleadings and proceedings heretofore had herein, the undersigned will move before this Court, at the Supreme Court of the State of New York, County of Kings, located at 360 Adams Street, Brooklyn, New York 11201, in Civil Term Commercial 8 on August 3, 2023 at 9:30 a.m., or as soon thereafter as counsel may be heard, for an Order granting Plaintiff's motion, and awarding relief as follows: a. Pursuant to CPLR §3025, granting Plaintiff leave to amend the Verified Complaint; and b. Vacating the Stipulation dated January 9, 2023 and So-Ordered on march 23, 2023 to the extent of preserving Plaintiff's rights for constructive trust and conversion claims related to Church Realty and to seek dissolution of Church Realty in connection with Plaintiff's constructive trust claims; and c. Such other and further relief in favor of Defendant as this Court may deem just, proper, and equitable. PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §2214(b), opposition 1 of 2 FILED: KINGS COUNTY CLERK 06/25/2024 07/12/2023 05:06 01:18 PM INDEX NO. 501280/2021 NYSCEF DOC. NO. 102 65 RECEIVED NYSCEF: 06/25/2024 07/12/2023 papers, if any, to this motion, are to be served upon the undersigned at least seven (7) days prior to the return date of this motion. Dated: July 11, 2023 Respectfully submitted, Garden City, New York Bradley R. Siegel, Esq. THE SIEGEL LAW FIRM, P.C. Attorneys for Plaintiff 591 Stewart Avenue, Suite 400 Garden City, NY 11530 T: (516) 558-7559 F: (888) 315-8363 To: Petrocelli Law, PLLC 52nd 322 W. Street, #2256 New York, NY 10019 2 2 of 2 FILED: KINGS COUNTY CLERK 06/25/2024 07/12/2023 05:06 01:18 PM INDEX NO. 501280/2021 NYSCEF DOC. NO. 102 66 RECEIVED NYSCEF: 06/25/2024 07/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _____________________________________-----------...______x ELI SHOUELA, Index No.: 501280/2021 Petitioner, AFFIDAVIT IN SUPPORT -against- ISAAC SHOUELA, and 1515 CHURCH AVENUE REALTY, LLC, Respondents. ---------------------------------------------X STATE OF NEW YORK ) ) SS.: COUNTY OF NASSAU ) ELI SHOUELA, being duly sworn, deposes and says: 1. I am the Plaintiff in the above-entitled action, and as such I am fully familiar with the facts and circumstances of this action. 2. This affidavit is respectfully submitted in support of Plaintiff's motion, for leave to amend the Complaint and vacating the stipulation dated January 9, 2023 and So-Ordered on March 23, 2023. 3. This action was commenced via filing of a Summons and Complaint on January 18, 2021. A copy of the Summons and Complaint is annexed hereto as Exhibit "A". 4. On or about December 2, 2022, Defendant filed an Order to Show Cause seeking to cancel and vacate the notice of pendency filed against the real property located at 1515 Church Avenue, Brooklyn, NY 11226 (the "Church Avenue Premises"). A copy of the Defendant's Order to Show Cause filed on or about December 2, 2022 is annexed hereto as Exhibit "B". 1 of 4 FILED: KINGS COUNTY CLERK 06/25/2024 07/12/2023 05:06 01:18 PM INDEX NO. 501280/2021 NYSCEF DOC. NO. 102 66 RECEIVED NYSCEF: 06/25/2024 07/12/2023 5. On January 9, 2023, my former attorney, John Lehr, executed a Stipulation of partial discontinuance. A copy of the Stipulation of partial discontinuance is annexed hereto as Exhibit "C". 6. Pursuant to the terms of the Stipulation of Discontinuance, all causes of action against defendant Isaac Shouela relating to 1515 Church Avenue Realty LLC and the Church Avenue Premises were discontinuedwithprejudice, including the First Cause of Action in its entirety, the Second Cause of Action in its entirety, the Third Cause of Action in its entirety, the Fourth Cause of action in its entirety, and the portion of the Eighth Cause of Action as it relates to the Church Avenue Premises. 7. Prior to my prior attorney executing the Stipulation of partial discontinuance, I forwarded to him an e-mail expressly stating that the withdrawal of any action should be made without prejudice, so that I would not be precluded from raising such claims in the future. A copy of e-mail correspondence to my previous attorney dated January 9, 2023 is annexed hereto as Exhibit "D". 8. Despite my request that any withdrawn claims be made without prejudice, shortly after the Stipulation of partial discontinuance was executed, I became aware that the Stipulation of partial discontinuance withdrew claims with prejudice. 9. After retaining my current attorneys, I became aware that I had constructive trust claims as it relates to 1515 Church Realty LLC ("Church Realty"). 10. Because I did not grant my previous attorney authority to withdraw the Church Realty claims with prejudice, and expressly stated any claims should be withdrawn without prejudice, it would be inequitable for me to be precluded from maintaining these claims, when I specifically intended to preserve such claims. 2 2 of 4 FILED: KINGS COUNTY CLERK 06/25/2024 07/12/2023 05:06 01:18 PM INDEX NO. 501280/2021 NYSCEF DOC. NO. 102 66 RECEIVED NYSCEF: 06/25/2024 07/12/2023 11. Based on the foregoing, it is respectfully requested that the Court vacate the Stipulation of partial discontinuance to the extent of pennitting judicial dissolution claims in connection with my constructive trust claims against Church Realty, as set forth in the proposed Amended Complaint, as more fully described herein, and in the Affirmation of my counsel. 12. I also respectfully request that the Court grant me leave to amend the complaint. A copy of the proposed amended complaint is annexed hereto as Exhibit "E". 13. In the proposed Amended Complaint, I seek to add causes of action for constructive trust for Church Realty, as my membership interest was transferred at the behest of defendant Isaac Shouela ("Isaac"), who promised me that he would return my interest at a later date. I trusted and believed him based on our close familial relationship as brothers. Unfortunately, Isaac breached that trust, and refuses to return my membership interest in Church Realty, despite my demands, resulting in Isaac being unjustly enriched at my expense. 14, I also seek to add causes of action for fraudulent misrepresentation, partition, conversion, and voidable transfer. 15. The claim for fraudulent misrepresentation stems from Isaac knowingly making false promises to me that I should transfer my interest in the subject real properties and Church Realty, and that he would return them to me at a later date. Isaac made these false promises to me knowing that he would not return my interest to me, and as a means to enrich himself. The claim for conversion relates to Isaac converting my interest in Church Realty to himself. 22nd 16. My name was on the deeds and mortgages for 1821 East Street, Brooklyn, 218t 22nd 8th NY, 1946 East Street, Brooklyn, NY, 1797 East Street, Brooklyn, NY, 1728 East Street, Brooklyn, NY, and I was a member of Church Realty, which held the deed to 1515 Church Avenue, Brooklyn, NY. 3 3 of 4 FILED: KINGS COUNTY CLERK 06/25/2024 07/12/2023 05:06 01:18 PM INDEX NO. 501280/2021 NYSCEF DOC. NO. 102 66 RECEIVED NYSCEF: 06/25/2024 07/12/2023 17. I am also asking the court to allow me to file a claim for partition after my interest in the subject real properties are returned to me. It is apparent that I cannot trust Isaac and that it would be impossible for the two of us to jointly maintain the subject real properties together. Thus, these properties must be sold. 18. After this action had been commenced, Isaac transferred his interest in the real 8th 802 property located at 1728 East Street, Brooklyn, NY ("1728 East Street") to an LLC that he formed, 1728 E 8 LLC. Upon information and belief, this transfer was made in an effort to block 8th my attempts to recover in this action. Since Isaac transferred 1728 East Street to his LLC, it is further requested that 1728 E 8 LLC be named as a party to this action as well. 19. For all of the forgoing reasons, it is respectfully requested that the Court grant Plaintiff's application to amend the complaint. 20. No previous application has been made to this or any other court for the relief requested herein. Ê I SHOUELA Sworn before me on this 11th day of uly, 2023 Notary Public / MICHAEL ERIC KUPFERBERG NOTARY PUBLIc - sTATE OF NEW YORK No. 02KU6308567 Qualmed inNassauCounty My Commission Expires July 28, 20_ 4 4 of 4 FILED: KINGS COUNTY CLERK 06/25/2024 07/12/2023 05:06 01:18 PM INDEX NO. 501280/2021 NYSCEF DOC. NO. 102 67 RECEIVED NYSCEF: 06/25/2024 07/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------_______________________________________Ç ELI SHOUELA, Plaintiff, Index No.: 501280/202I -against- AFFIRMATION IN SUPPORT ISAAC SHOUELA, and 1515 CHURCH AVENUE REALTY, LLC Defendant. -------____________-------------_________Ç BRADLEY R. SIEGEL, ESQ, an attorney duly admitted to practice law before the Courts of the State of New York, affirms under penalty of perjury: 1. I am the principal of The Siegel Law Firm, P.C., attorneys for the Plaintiff, ELI SHOUELA ("Plaintiff") in the above-entitled action, I am fully familiar with the facts and circumstances of this case based upon a review of the file maintained by my office and communications with my client. This is not a frivolous motion and the statements of fact are not false. 2. This Affirmation is submitted in support of Plaintiff's Motion requesting that Plaintiff be granted leave to amend the Verified Complaint pursuant to CPLR §3025, and serving the Amended Verified Complaint upon the the dated 2023 and So- Defendant; vacating Stipulation, January 9, Ordered on March 23, 2023 to the extent of preserving Plaintiff's rights for constructive trust and conversion claims related to Church Realty and to seek dissolution of Church Realty in connection with his constructive trust claim as more fully set forth herein; and such other and further relief deemed just and proper in favor of Plaintiff as this Court may deem just, proper, and equitable. 1 1 of 6 FILED: KINGS COUNTY CLERK 06/25/2024 07/12/2023 05:06 01:18 PM INDEX NO. 501280/2021 NYSCEF DOC. NO. 102 67 RECEIVED NYSCEF: 06/25/2024 07/12/2023 BACKGROUND 3. Plaintiff commenced this action by filing a Summons and Verified Complaint on January 18, 2021 (the "Complaint"). A copy of the Summons and Verified Complaint is annexed hereto as Exhibit "A". 4. Plaintiff's Complaint contains eight causes of action, to wit: i) A declaratory judgment that Plaintiff is a 50% member of Church Avenue Realty LLC ("Church Realty"); ii) A judicial dissolution of Church Avenue Realty, LLC; iii) Breach of fiduciary duty related to mismanagement of the day-to-day operation of Church Avenue Realty; iv) An accounting; v) Unjust enrichment; vi) Constructive trust; vii) Promissory estoppel; and viii) Temporary and permanent injunction. 5 On or about December 2, 2022, Defendant filed an Order to Show Cause seeking to cancel and vacate the notice of pendency filed against the real property located at 1515 Church Avenue, Brooklyn, NY 11226 (the "Church Avenue Premises"). A copy of the Defendant's Order to Show Cause filed on or about December 2, 2022 is annexed hereto as Exhibit "B". 6. Although the Defendant's Order to Show Cause does not seek withdrawal of any causes of action, on or about January 9, 2023, Plaintiff's then counsel, John Lehr, executed a Stipulation of partial discontinuance, and cancellation of the Notice of Pendency filed against the 2 2 of 6 FILED: KINGS COUNTY CLERK 06/25/2024 07/12/2023 05:06 01:18 PM INDEX NO. 501280/2021 NYSCEF DOC. NO. 102 67 RECEIVED NYSCEF: 06/25/2024 07/12/2023 Church Avenue Premises (the "Stipulation of Discontinuance"). A copy of the January 9, 2023 stipulation is annexed hereto as Exhibit "C". 7. Pursuant to the terms of the Stipulation of Discontinuance, all causes of action against defendant Isaac Shouela relating to 1515 Church Avenue Realty LLC and the Church Avenue Premises were discontinued with prejudice, including the First Cause of Action in its entirety, the Second Cause of Action in its entirety, the Third Cause of Action in its entirety, the Fourth Cause of action in its entirety, and the portion of the Eighth Cause of Action as it relates to the Church Avenue Premises. 8. For all of the reasons set forth below, the Stipulation of Discontinuance should be vacated, in part to the extent of preserving Plaintiff's right to seek judicial dissolution of the Church Avenue Premises in connection with Plaintiff's constructive trust claims as more fully set forth herein, and Plaintiff should be granted leave to amend the Complaint. PLAINTIFF SHOULD BE GRANTED LEAVE TO AMEND THE VERIFIED COMPLAINT 9. It is well settled that leave to amend a pleading shall be freely granted under CPLR §3025(b), where the proposed amendment is neither palpably devoid of merit and will not result in surprise or prejudice to the opposing party. See Old World Custom Homes, Inc. v. Crane, 33 A.D.3d 600, 822 N.Y.S.2d 155 (2d Dep't 2006). Leave should be denied only when the proposed amendment plainly lacks merit or a substantial question exists as to its sufficiency. Furthermore, there is no prejudice due to the mere omission to plead a claim, defense, or counterclaim in an original pleading. See Schlossberg v. Varjabedian, 2005 NY Slip Op 50260U, 800 N.Y.S2d 356, (Civ. Ct. N.Y. Cnty. 2005). 10. To defeat a motion for leave to serve an amended pleading, the party opposing the amendment must demonstrate "some special right lost in the interim, some change of position or 3 3 of 6 FILED: KINGS COUNTY CLERK 06/25/2024 07/12/2023 05:06 01:18 PM INDEX NO. 501280/2021 NYSCEF DOC. NO. 102 67 RECEIVED NYSCEF: 06/25/2024 07/12/2023 some significant trouble or expense that could have been avoided had the original pleading contained add." what the amended one now wants to Siegel, New York Practice (4th) § 237; See also Fulford v. Baker Perkins, Inc., 100 A.D.2d 861, 474 N.Y.S.2d 114 (2d Dep't 1984); Wyso v. City of New York, 91 A.D.2d 661, 457 N.Y.S,2d 112 (2d Dep't 1982). 11. The Plaintiff is seeking to include a cause of action against defendant Isaac Shouela ("Isaac") for constructive trust as it relates to 1515 Church Avenue Realty LLC, fraudulent misrepresentation, partition, conversion, and voidable transfer, as well as adding 1728 E 8 LLC as a "E" defendant. Annexed hereto as Exhibit is a copy of the proposed Amended Complaint. 12. The proposed Amendment to the Verified Complaint is with merit and will not result in surprise or prejudice to the Defendant. The Complaint already makes constructive trust claims in connection with real property where Plaintiff was previously named as owner on several deeds to real property. Further, the facts surrounding the cause of action for fraudulent inducement were aheady pleaded and will not act as a surprise to Isaac. The Complaint also previously sought dissolution of the 1515 Church Avenue Realty LLC. There should be no surprise that upon being named an owner to the subject real properties that Plaintiff would seek to partition those properties. The cause of action for voidable transfer and adding of 1728 E 8 LLC as a defendant arose after Isaac transferred 8d' 1728 East Street to his own LLC after the filing and service of the summons and complaint commencing this action. 13. Moreover, discovery is only in its infancy, with depositions not yet having been completed, and Defendant will not lose any right in the interim or accrue any additional expense as a result of the proposed amendments to the Complaint. 14. Based upon the foregoing, Plaintiff's application to amend the Verified Complaint to add a Cause of Action for constructive trust related to Church Realty, causes of action for fraudulent