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

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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 01/05/2024 10 :48 AM] 

NYSCEF DOC. NO. 73 

SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF KINGS 

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Barry Hersko, 

Plaintiff(s), 

- against -

INDEX NO. 510092/2021 

RECEIVED NYSCEF: 01/05 024 

Index No.510092/2021 

DECISION/ORDER 

Motion Sequence No. 02 

Denissi Hersko, et al., 

Defendant(s). 

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Recitation, as required by CPLR §2219(a), of the papers considered in the review of this Motion: 

Sequence II 02 

Order to Show Cause/Notice or Motion and 

Affidavits/Affirmations Annexed 

Exhibits 

Opposition 

Exhibits 

Sripulalion Cancelling the Notice 

of Pendency 

Reply 

i"iYSCEF Documt:nl :-.:o: 

ll-35: 42 

36-41 

46-47 

48 

50- 51 

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 58th Street [1368 58th Street], Brooklyn, NY - Block 5705, Lot 63; and 

{Lv] 5023 15th Avenue, Unit 4 [5023 15th 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 15th Avenue. 

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!FILED: KINGS COUNTY CLERK 01/05/2024 10: 48 AM) 

NYSCEF DOC. NO. 73 

INDEX NO. 510092/2021 ·~ 

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. 

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NYSCEF DOC. NO. 73 

Second Cause of Action 

INDEX NO. 510092/2021 

RECEIVED NYSCEF: 01/05/2024 

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 59th 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 59th 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. 

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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 58th 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 581h 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 58th 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 58th 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 581h 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. 

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NYSCEF DOC. NO. 73 

Thirteenth Cause of Action 

Breach of Contract against Rivky re: the Condo 

INDEX NO. 510092/2021 

RECEIVED NYSCEF: 01/05/2024 

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 58th 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 

For clerks use only 

MG 

MD✓ 

Motion Seq. # 02 

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ENTER: 

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