### 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


### Uponthe foregoing documents, and oral argumentbefore the court onNovember 29, 2023, itis orderedthat plaintiffsmotion is granted. This matter arises out ofthe construction, operation, and management of a condominium residential development located at 77 Clarkson Avenue, Brooklyn, New York. In April 2017, plaintiff GKER Ltd. ("GKER") assumed the holding of approximately 32% ofthe 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, 75-77 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

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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
misappropriated GKER's investments and engaged in fraud in acquiring and repaying certain loans, all to plaintiff's detriment. Plaintiffnow moves by order to show cause for an order of attachment and certainpreliminary injunctiverelief. Defendants ClarksonBU, EranReisfeld, Ran Oron, Gili Haberberg, and Benjamin Haberberg oppose the motion. Entitlementto apreliminary injunctionunder CPLR § 6301 is establishedby a showing of: "(1) a likelihood ofultimate success on the merits; (2) the prospect ofirreparable injury ifthe provisional reliefis withheld; and (3) a balance ofequities tipping in the moving party's favor." Doe v. Axelrod, 73 N.Y.2d 748, 750 (1988). Thepurpose ofapreliminary injunctionis 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 (!51Dep't 1993). Further, an order ofattachment pursuant to CPLR §6201 may be granted "wherethe plaintiffhas demanded and wouldbe 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 ofajudgmentthat might be rendered in plaintiff's favor, has assigned, disposed of, encumbered or secreted property, or removed iffrom the state or is aboutto do any ofthese acts ...." The record before this court contains ample evidence that justifies the issuance ofboth injunctive reliefand an order ofattachment in favor ofplaintiffat thisjuncture ofthe litigation. There is a likelihood ofplaintiff's success on the merits ofits claims, as there appears to be no adequate explanation to date for the lack ofproper documentation ofthe nature ofthe cash flow in and out ofthe subject property development. The prospect of irreparable injury to plaintiffis apparent, since, for example, any improper borrowing against the property in question may result in a foreclosure and subsequent loss ofthe asset property. The balance ofthe equities lies with

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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
plaintifffor the same reason. In addition, the facts ofthis matter supportthe issuance ofan order ofattachment, where: plaintiffhas demanded, interalia, a moneyjudgment; at least one defendant is located outside NewYork State; and the possibility exists that said defendant or defendants may
remove monies from the State infrustration ofenforcementby plaintiffofa prospectivejudgment. Accordingly, it is hereby ORDERED that plaintiff's motion is granted; and it is further ORDERED thatplaintiffs motion for an order ofattachment is granted and the amount to be secured by this order ofattachment, inclusive ofprobable 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, conditionedthat 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 Sherifffor allowable fees, ifdefendants recoverjudgment or ifit is decided that plaintiffis not entitled to an attachment ofthe property described hereinbelow; and it is further ORDERED that the Sheriffofthe City ofNew York, or the Sheriffofany County ofthe State ofNew York, shall levy withinhisjurisdiction, at any time before finaljudgment, upon such real property in which defendants have an interest and upon such debts owingto 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, NewYork 11226 (the "Property"), and that the Sheriffproceed herein in the manner and make his return withinthe 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

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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 ofcondominiums 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 ofthe 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 ofClarksonBU 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 thatplaintiffsprevious undertaking of$5,000.00pursuantto this court's order ofOctober 18, 2023, shall remain in effect. This constitutes the decision and order ofthe 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

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