### Kirschenbaum v De Baets 2024 NY Slip Op 30581(U) February 22, 2024 Supreme Court, New York County Docket Number: Index No. 653287/2019 Judge: Andrew Borrok 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.NYSCEF DOC. NO. 247 INDEX NO. 653287/2019 RECEIVED NYSCEF: 02/22/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53

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JASON KIRSCHENBAUM, Plaintiff,

- V - STEPHANE DEBAETS, THOSAPONG JURUTHAVEE, ELEVATED RETURNS, LLC,315 EAST DEAN ASSOCIATES, INC.,ASPEN DIGITAL, INC.,ER MERRY WAY LP, ER GLOBAL, LLC,JOHN DOES 1-10, Defendant.

-----------------------------------------------------------------------------------X HON. ANDREW BORROK: INDEX NO. 653287/2019 MOTION DATE 11/29/2023 MOTION SEQ. NO. 009

DECISION+ ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 009) 236,237,238, 239, 240,241,242,243,244,245,246 were read on this motion to/for AMEND CAPTION/PLEADINGS Upon the foregoing documents, Plaintiffs motion for leave to amend or in the alternative for reargument/renewal is denied.
This case was first filed in 2019, and Mr. Kirschenbaum's theory ofthe case has gone through a number ofdifferent iterations and pleadings. By decision and order dated October 16, 2020, the Court dismissed all ofPlaintiffs claims except one, his claim sounding in unjust enrichment (NYSCEF Doc. No. 68). After discovery, by decision and order dated October 30, 2023, the Court granted the Defendant's motion seeking summaryjudgment and dismissal ofthe claim for unjust enrichment (NYSCEF Doc. No. 228). Thus, this case has been disposed and there is no complaint left to amend (Jeffrey L. Rosenberg &Assocs., LLC. v. Kadem Cap. Mgmt., Inc., 306 A.D.2d 155, 156 [1st Dept 2003] ["Plaintiffs' complaint having been previously dismissed on

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### [* 1]NYSCEF DOC. NO. 247 INDEX NO. 653287/2019 RECEIVED NYSCEF: 02/22/2024
summaryjudgmentin aprior, unappealed order, there was no basis for amotion for its amendment; there was no complaint leftbefore the court to amend."]).
Plaintiffsrequest in the alternative for reargument is also denied. A motion to reargue mustbe basedupon matters oflaw or fact allegedly overlooked or misapprehendedby the court in determining the priormotion (CPLR 2221[d]; Pezhman v Chanel, Inc., 126 AD3d 497,497 [1st Dept 2015]). Plaintifffails to point to any matter oflaw or fact this Court overlooked or misapprehended. Plaintiffargues that the existence ofseveral contracts governing the transactions he entered into with Defendants presents an issue offact warranting reargument and denial ofDefendant's motion for summaryjudgment. Butthe Court knew ofand expressly relied on the existence ofthese contracts in granting the Defendant's motion seeking summary judgment. Discoveryhas revealed that the parties' relationships were governedby specific agreements and that there are no issues offact that these agreements were not violated and that the Plaintiffis not otherwise entitled to reliefbased on a claim for unjust enrichment. As discussed in the October 20, 2020 decision and order, Plaintiffs investment in the ASPEN REIT was governed by a March 22, 2016 Letter Agreement, under which Plaintiffwouldhave been compensatedwith 50% ofany advisory fee paid to the advisory company, and 25% equity in the advisory company, upon a successful listing ofthe REIT on NASDAQ, which never occurred (NYSCEF Doc. No. 68 at 17). Following this, Plaintiffwas compensated as a W-2 employee (NYSCEF Doc. No. 166). As discussed in the October 30, 2023 decision and order, Plaintiffs claims relating to the $1.36 million investment in Aspen Coin and an alleged one-third interest in a $1 million investment in Securitize were also governed by contract, namely an October 2, 2018 Purchase Agreement and a November 2, 2018 Stock Purchase Agreement, respectively

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### [* 2]NYSCEF DOC. NO. 247 INDEX NO. 653287/2019 RECEIVED NYSCEF: 02/22/2024 (NYSCEF Doc. No. 228 at 5-6). This Court found Plaintiffdid not produce any evidence indicating he is entitled to payment from Defendants pursuant to these latter two contracts sufficient to raise an issue oftriable fact. In particular, the Court found Plaintifffailed to adduce any evidence in support ofhis allegation as to any possessory interest in the funds invested in Securitize (NYSCEF Doc. No. 228 at 2-3) thatraised a triable issue offact. Plaintifffails to point to any evidence indicating Plaintiffwas due such a payment that the Court did not consider or misapprehended.
For the avoidance ofdoubt, the Courtnotes that Plaintiffs proposedbreach ofcontract claim alleging Defendants owe Plaintiff$1.36 million, apparently pursuant to his investment in Aspen Coin, would nevertheless be unavailing, because Plaintiffs proposed Third Amended Complaint (NYSCEF Doc. No. 243) fails to allege Defendants committed any specific breach ofthe October 2, 2018 Purchase Agreement, or that Defendants have any control or custody over these funds. As to Plaintiffs claim to the one-thirdportion ofan alleged $1 million fee paid out to Defendants, Plaintiffs proposed Third Amended Complaint sues for these funds on the basis of fraud, notbreach ofcontract (NYSCEF Doc. No. 243, 

### ,i,i 85-91). The Court dismissed this same fraud claim in its October 16, 2020 decision and order, and denied Plaintiffleave to amend to renew this claimpost-discovery in its October 30, 2023 decision and order, finding the claim still subject to the same infirmities that warranted its dismissal. Plaintiffhas made no effort to fix these infirmities pursuant to this motion. To the extent Plaintiffseeks leave to amend to bring a breach ofcontract claim on the purported one-third fee (and it is not clearhe does), this too fails because Plaintiffhas notproduced evidence showing he is even a party to the November 2, 2018 Stock Purchase Agreement or that he contributed any funds to Defendants' investment in

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Securitize underthat Agreement such thathe is entitledto anypaymentpursuantto that Agreement. Thus, this Agreement does notprovide Plaintiffand ground for reliefand such a claim is palpably insufficient as a matter oflaw and itdoes notmatterthat monies invested in Securitize were returned.
Plaintiffindicated at oral argument (2.20.24) thatthe Court should exercise its discretion to considerthe instantmotion for reargument as one for renewal. Pursuantto CPLR 2221(e)(2), a motion for leave to renew mustbebased onnew facts not offered onthe priormotion that would change the prior determination, or on a demonstration thatthere has been a change inthe law that would change the prior determination. The Plaintifffails to point to any new facts or change in the law that would change this Court'spriorruling. Thus, the motion is denied.

2/22/2024

DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

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# ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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