### 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] NYSCEF DOC. NO. 73
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS 

### ------------------------------------------------------------------------X 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). 

### --------------------------------------------------------------------------X Recitation, as required by CPLR §2219(a), ofthe papers considered in the review ofthis Motion:
Sequence II 02 Order to Show Cause/Notice or Motion and Affidavits/Affirmations Annexed Exhibits Opposition Exhibits Sripulalion Cancelling the Notice ofPendency Reply i"iYSCEF Documt:nl :-.:o:
ll-35: 42 36-41 46-47 48 50- 51 54 Defendants' movepursuant to CPLR §3211 (a)(l), (5) and (f)to dismissthe Amendedcomplaint dated November 28. 2021; pursuant to CPLR §650I and §6514 (b) 

### & (c), and to cancel and discharge of record the Notices ofPendency 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 ofwhen ajusticeable controversy arose in this
By stipulation dated April 20, 2022, the plaintiffs and all appearing defendants agreed to vacate, cancel, discharge the Notice ofPendency 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 offraud and statute oflimitations, the Court finds that Plaintiffs' opposition raises a question offact 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 oflaw. 

### Goshen vMut. Life Ins. Co., 98 NY2d 314 [2002]. In this case involving family affairs, documentary evidence simp1y cannot determine whether a cause ofaction 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 

### ifa substantial right ofa party 

### is not prejudiced CPLR §3206. A motion pursuant to CPLR §3211 (a)(7) for failure to state a cause ofaction, like that ofCPLR §3211

### (a)(l) is generally not granted due to 

### the rule of liberal construction 

### ofthe pleadings. People v Coventry First LLC, 13 NY3d I08 [2009] (Breach of Fiduciary Duty), Simkin v. 

### Blank, 19 NY3d 46 [2012].

### In regards to 

### the individual causes ofaction, the Court makes the following determinations:

First Cause ofAction DeclaratoryJudgment against Denissi Hersko

- HFR Membership TheFirst cause ofAction is NOT stricken. The Court finds that whether Denissi Hersko holds a 

### bonafide membership interest in HFR and/or whether that membership interest should be void is sufficiently pleaded.

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### !FILED: KINGS COUNTY CLERK O

### 1/05/2024 10:4 8 AM) NYSCEF DOC. NO. 73
Second Cause ofAction INDEX NO. 510092/2021 RECEIVED NYSCEF: 01/05/2024
Declaratory Judgement against Denissi 

### Hersk- Forged Deed 

### The Second Cause ofAction is NOT stricken. The Court finds that it is a question offact 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 ofsix years from the date the cause ofaction accrued or two years from the time the plaintiffor the person under whom the plaintiffclaims discovered the fraud, or could with reasonable diligence have discovered it." CPLR§2l3(8). The Court finds that it is a question of fact as to \\'hen Plaintiffdiscovered the alleged fraud; when Defendant Denissi repudiated onherpromise orprior to that time.
Third Cause ofAction 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 ofsaid deed unauthorized, and whether Defendant Denissi gained title to the premises located at 1322 59th 

### Street fraudulently is a question offact. Again, the Court notes that the determination ofwhen the applicable statute oflimitations is a question offact.
Fourth Cause

### ofAction Constructive Trust as to 1322 59th Street Against Denissi 

### The fourth cause ofAction is NOT stricken. The Court finds that there is a question offact as to whether a constructive trust exists.
Fifth Cause 

### ofAction Unjust Enrichment against Denissi as to 1322 59th Street 

### The Fifth Cause ofAction is NOT stricken. The Court finds that there is a question offact as to whether ornot Defendant Denissi was unjustly enriched. Sixth Cause 

### ofAction Breach ofContract against Denissi, Malky, and Yidi re: 1322 59th Street 

### The Sixth Cause ofAction is NOT stricken. The Court finds that there is a question offact as to whether there was a contract and whetherthere was a breach ofsaid contract.


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### [FILED: KINGS COUNTY CLERK 01/05/2024 10:48 AM] NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 01/05/2024 Seventh Cause ofAction Breach ofFiduciary Dut)· against Denissi re: 1322 59•h Street The Seventh Cause ofAction is NOT stricken. The Court finds that there is a question offact as to whether there was a fiduciary duty and whether there was a breach ofthat duty. Eighth Cause ofAction RPAPL 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 I368 58 1 h Street fraudulently is a question offact. Again, the Court notes that the determination of when the applicable statute of limitations began to run is a question offact.
Ninth Cause ofAction Constructive Trust against Denssi and Toby re: 1368 58th Street TheNinth Cause ofAction isNOT stricken. The Court finds that there is a question offact as to whether a constructive trust exists.
Tenth Cause ofAction Breach ofFiduciary Duty against ofDenissi re: 1368 58th Street The Tenth Cause ofAction is NOT stricken. The Court finds that there is a question offact as to whether there was a fiduciary duty and as to whether Defendant Denissi breached that duty.
EleYenth Cause ofAction Unjust Enrichment against Denissi and Toby re: 1638 58 1h Street The Eleventh Cause ofAction is NOT stricken. The Court finds that there is a question offact as to whether Defendants Denissi and Toby were unjustly enriched.
Twelfth Cause ofAction Breach ofContract against Lefkowitz re: the Condo The Twelfth Cause ofAction is NOT stricken. The Court finds that there is a question offact as to whether there was a breach ofcontract.

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### [FILED: KINGS COUNTY CLERK 01/05/2024 10:48 AM] NYSCEF DOC. NO. 73
Thirteenth Cause ofAction Breach ofContract against Rivky re: the Condo INDEX NO. 510092/2021 RECEIVED NYSCEF: 01/05/2024

The Thirteenth Cause ofAction is NOT stricken. The Court finds that there is a question offact as to whether there was a contract and whether there was a breach ofsaid contract.
Fourteenth Cause ofAction Declaratory Judgement against MEHE and Denissi The fourteenth Cause ofAction is NOT stricken. The Court finds that there is a question offact 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 §65l4(b) absolutely cannot be determined at this time. The Court finds that it is a question offact as to whether
or not Plaintiffcommenced or prosecuted this action in good faith. Therefore, the court will not direct the clerk to cancel the notices ofpendency on the properties 1322 59th Street and 1368 58th Street. Since the court 

### is not cancelling the notices ofpendency, 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) ofPlaintiffs' causes ofaction are sufficiently pleaded, the Notices ofPendency ARE NOT vacated. and the application for attorney fees and costs is DENIED. This constitutes the Decision/Order ofthe Court. ·"'-.,_ Dated: January 4, 2024

For clerks use only 

### MG**MD ✓**  Motion Seq. # 02 

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