GKER Ltd. v Clarkson BU LLC

2024 NY Slip Op 31067(U)

March 27, 2024

Supreme Court, New York County

Docket Number: Index No. 653955/2023

Judge: Suzanne J. Adams

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: NEW YORK COUNTY CLERK 03/28/2024 05:00 P~ 

NYSCEF DOC. NO. 82 

INDEX NO. 653955/2023 

RECEIVED NYSCEF: 03/28/2024 

PRESENT: 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

HON.SUZANNEJ.ADAMS PART 

Justice 

39M 

-------------------X INDEX NO. 653955/2023 

GKER LTD., ON BEHALF OF ITSELF AND DERIVATIVELY 

ON BEHALF OF CLARKSON BU LLC, 

Plaintiff, 

- V -

CLARKSON BU LLC,75-77 CLARKSON AVENUE 

INVESTORS, LLC,ERAN REISFELD, RAN ORON, 

CLARKSON 1, LLC,HANNAN SALTZMAN, GILi 

HABERBERG, BENJAMIN HABERBERG, BARUCH 

BEZNER, NIR MESTERMAN, RAN MESTERMAN, OFFICE 

LINE LTD., HEZI ASPIS 

Defendant. 

-----------,---------X 

MOTION DATE N/A 

MOTION SEQ. NO. 001 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 

11, 12, 13, 14, 15, 16, 17, 18,21,22,24,28,29, 30,33,34, 37, 38, 39,40,41,42,43,44,45,46,47,48, 

49, 50, 51, 52, 53, 54, 55,56, 63, 64, 65,66, 67,68, 69, 80, 81 

were read on this motion to/for PREL INJUNCTION/TEMP REST ORDR 

Upon the foregoing documents, and oral argument before the court on November 29, 2023, 

it is ordered that plaintiffs motion is granted. This matter arises out of the construction, operation, 

and management of a condominium residential development located at 77 Clarkson A venue, 

Brooklyn, New York. In April 2017, plaintiff GKER Ltd. ("GKER") assumed the holding of 

approximately 32% of the membership units in defendant 75-77 Clarkson Avenue Investors, LLC 

("75-77 Clarkson"), for which $1,842,514.00 was invested. 75-77 Clarkson is a holding entity 

whose purpose was to invest in defendant Clarkson BU LLC ("Clarkson BU"), the entity with title 

to the aforementioned residential development property. In July 202, 7 5-77 Clarkson was 

dissolved and GKER's membership interest therein was deemed to be a membership interest in 

Clarkson BU. Plaintiff commenced this action in August 2023, alleging that defendants have 

653955/2023 GKER LTD., ON BEHALF OF ITSELF AND DERIVATIVELY ON BEHALF OF 

CLARKSON BU LLC vs. CLARKSON BU LLC ET AL 

Motion No. 001 

1 of 4 

Page 1 of 4 

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[FILED: NEW YORK COUNTY CLERK 03/28/2024 05:00 P~ 

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INDEX NO. 653955/2023 

RECEIVED NYSCEF: 03/28/2024 

misappropriated GKER's investments and engaged in fraud in acquiring and repaying certain 

loans, all to plaintiff's detriment. Plaintiff now moves by order to show cause for an order of 

attachment and certain preliminary injunctive relief. Defendants Clarkson BU, Eran Reisfeld, Ran 

Oron, Gili Haberberg, and Benjamin Haberberg oppose the motion. 

Entitlement to a preliminary injunction under CPLR § 6301 is established by a showing of: 

"(1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the 

provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor." 

Doe v. Axelrod, 73 N.Y.2d 748, 750 (1988). The purpose of a preliminary injunction is to maintain 

the status quo pending a trial. See Terrell v. Terrell, 279 A.D.2d 301, 304 (1 st Dep't 2001); Sau 

Thi Ma v. Xuan T Lien, 198 A.D.2d 186, 187 ( !51 Dep't 1993). Further, an order of attachment 

pursuant to CPLR § 6201 may be granted "where the plaintiff has demanded and would be entitled, 

in whole or in part, or in the alternative, to a money judgment against one or more defendants, 

when: 1. the defendant is a nondomiciliary residing without the state ... ; or 3. the defendant, with 

intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in 

plaintiff's favor, has assigned, disposed of, encumbered or secreted property, or removed if from 

the state or is about to do any of these acts .... " 

The record before this court contains ample evidence that justifies the issuance of both 

injunctive relief and an order of attachment in favor of plaintiff at this juncture of the litigation. 

There is a likelihood of plaintiff's success on the merits of its claims, as there appears to be no 

adequate explanation to date for the lack of proper documentation of the nature of the cash flow in 

and out of the subject property development. The prospect of irreparable injury to plaintiff is 

apparent, since, for example, any improper borrowing against the property in question may result 

in a foreclosure and subsequent loss of the asset property. The balance of the equities lies with 

653955/2023 GKER LTD., ON BEHALF OF ITSELF AND DERIVATIVELY ON BEHALF OF 

CLARKSON BU LLC vs. CLARKSON BU LLC ET AL 

Motion No. 001 

2 of 4 

Page 2 of 4 

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NYSCEF DOC. NO. 82 

INDEX NO. 653955/2023 

RECEIVED NYSCEF: 03/28/2024 

plaintiff for the same reason. In addition, the facts of this matter support the issuance of an order 

of attachment, where: plaintiff has demanded, inter alia, a money judgment; at least one defendant 

is located outside New York State; and the possibility exists that said defendant or defendants may 

remove monies from the State in frustration of enforcement by plaintiff of a prospective judgment. 

Accordingly, it is hereby 

ORDERED that plaintiff's motion is granted; and it is further 

ORDERED that plaintiffs motion for an order of attachment is granted and the amount to 

be secured by this order of attachment, inclusive of probable interest, costs and Sheriffs fees and 

expenses, shall be $1,847,514.00; and it is further 

ORDERED that plaintiffs undertaking is fixed in the sum of $10,000.00, conditioned that 

the plaintiff shall pay to the defendant an amount not exceeding $1,000.00 for legal costs and 

damages which may be sustained by reason of the attachment, and up to and not exceeding 

$1,000.00 to the Sheriff for allowable fees, if defendants recover judgment or if it is decided that 

plaintiff is not entitled to an attachment of the property described hereinbelow; and it is further 

ORDERED that the Sheriff of the City of New York, or the Sheriff of any County of the 

State of New York, shall levy within his jurisdiction, at any time before final judgment, upon such 

real property in which defendants have an interest and upon such debts owing to defendants as will 

satisfy $1,842,514.00, together with probable interest, costs, and the Sheriff's fees and expenses, 

specifically the following real property: 75-77 Clarkson Avenue, Brooklyn, New York 11226 (the 

"Property"), and that the Sheriff proceed herein in the manner and make his return within the time 

prescribed by law; and it is further 

ORDERED that all defendants, including without limitation, Clarkson BU LLC, and their 

agents and all those acting in concert with defendants or on defendants' behalf, are enjoined and 

653955/2023 GKER LTD., ON BEHALF OF ITSELF AND DERIVATIVELY ON BEHALF OF 

CLARKSON BU LLC vs. CLARKSON BU LLC ET AL 

Motion No. 001 

3 of 4 

Page 3 of 4 

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[FILED: NEW YORK COUNTY CLERK 03/28/2024 05:00 P~ 

NYSCEF DOC. NO. 82 

INDEX NO. 653955/2023 

RECEIVED NYSCEF: 03/28/2024 

restrained from dissipating, paying, or transferring any monies in their possession, or any monies 

that may come into their possession, in connection with the sale of condominiums located at the 

Property; and it is further 

ORDERED that Clarkson BU LLC, the Property owner, is enjoined and restrained from 

releasing any monies, funds, loan repayments and/or any disbursements to any of the defendants, 

or anyone else on their behalf; and it is further 

ORDERED that Clarkson BU LLC, and those managing it, including several defendants, 

are enjoined and restrained from using any monies or funds of Clarkson BU LLC, or those monies 

attributable to the Property, for any purpose other than for management and expenses of the 

Property ( e.g., taxes, utilities, and/or mortgage); and it is further 

ORDERED that plaintiffs previous undertaking of$5,000.00 pursuant to this court's order 

of October 18, 2023, shall remain in effect. 

This constitutes the decision and order of the court. 

3/27/2024 

DATE 

CHECK ONE: 

SUZANNE J. ADAMS, J.S.C. 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

653955/2023 GKER LTD., ON BEHALF OF ITSELF AND DERIVATIVELY ON BEHALF OF 

CLARKSON BU LLC vs. CLARKSON BU LLC ET AL 

Motion No. 001 

4 of 4 

□ OTHER 

□ REFERENCE 

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