Opinion
No. 656951/2020 MOTION SEQ. No. 002
05-12-2022
IN THE MATTER OF THE APPLICATION OF ARAD 2 LLC, DIRECTLY IN ITS OWN RIGHT AND DERIVATIVELY AS A MEMBER OF 4053-4057 BX, LLC, AND ARAD LLC. DIRECTLY IN ITS OWN RIGHT AND DERIVATIVELY AS A MEMBER OF 4001 BX, LLC AND DAVID ARAD, Plaintiff, v. GADI HAMO, MOUNT SINAI PROPERTIES, INC. (A/K/A MT. SINAI PROPERTIES, INC.), 4053-4057 BX, LLC, 4001 BX, LLC, Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. ROBERT R. REED JUDGE.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 126 were read on this motion to STRIKE PLEADINGS.
This case involves a dispute between cousins who own and operate two limited liability companies. Plaintiff David Arad ("Arad") commenced this action individually and derivatively against defendant Gadi Ben-Hamo ("Ben-Hamo"), to dissolve 4053-4057 BX LLC and 4001 BX LLC for Ben-Hamo's alleged fraud, conversion, and breach of fiduciary duties. In a 243-paragraph complaint, Arad makes several allegations against Ben-Hamo and his attorneys directly, referencing conduct that Arad characterizes as "criminal," "fraudulent" and knowingly unethical. Defendants move for an order pursuant to CPLR 3024(b), striking certain paragraphs of the plaintiffs' complaint due to their scandalous and prejudicial nature. For the foregoing reasons, defendants' motion is granted. CPLR 3024 (b) permits a party to seek an order striking objectionable matter from a pleading. To determine whether an allegation should be stricken, the court assesses whether the inclusion of the information is relevant and necessary to establish the elements of a legal claim (Soumayah v. Minnelli, 41 A.D.3d 390, 392 [1st Dept 2007]; Pisula v. Roman Cath. Archdiocese of New York, 201 A.D.3d 88, 96-97 [2nd Dept 2021] ["The relevance and propriety of allegations must be viewed in the context of the general facts necessary for giving the court and the parties notice of the transactions or occurrences at issue, for addressing the material elements of the asserted causes of action or defenses and for meeting any particularity requirements that might be additionally required under CPLR 3015 or 3016 or other authority"]).
Matter that is scandalous or prejudicial will not be stricken if it is relevant to a cause of action in a complaint or its material elements (id., citing New York City Health & Hosps. Corp. v. St. Barnabas Community Health Plan, 22 A.D.3d 391 [1st Dept 2005]), but allegations may be . stricken if the matter is (1) unnecessary for the complaint's sufficiency, (2) prejudicial, or (3) irrelevant (Schachter v. Massachusetts Protective Ass'n, 30 A.D.2d 540 [2nd Dept 1968]).
Here, the language at issue involves plaintiffs' recitations of events surrounding a Bronx case styled, Gadi Ben Hamo, et. al. v. DavidArad, et. al. bearing index 802107/202IE. In that action, Ben-Hamo requested a restraining order from the court prohibiting Arad from taking specific action with respect to 4001 BX LLC. Ultimately, the matter was disposed of by stipulation, and a management agreement for 4001 BX LLC was agreed upon by all parties.
In the amended complaint, Arad characterizes Ben Hamo's handling of the Bronx litigation as "fraud" and asserts that defendants committed a crime in the commission of or in the filing of the Bronx action (see NYCEF doc. no. 32 para. 7, 30). Arad's amended complaint also claims that Ben Hamo's attorneys made material misrepresentations to the Bronx court and submitted knowingly fraudulent and falsified documents in support of the Bronx litigation (see NYCEF doc. no. 32 para. 29). These statements are prejudicial and unnecessary.
Arad's subjective labeling of Ben Hamo and his attorney's conduct in the Bronx litigation is irrelevant to whether Arad can establish that Ben Hamo committed fraud and breached his fiduciary duties with respect to the operation of 4053 BX LLC in this action.
The court recognizes that the conduct underlying the amended complaint's allegations may later be relevant and admissible at trial. Nevertheless, this court finds it unnecessary, for the sufficiency of the pleading, to characterize the conduct of the parties involved in the Bronx litigation as "criminal," "fraudulent," and "unethical." To allow those allegations to remain in the pleadings would cause undue prejudice (JC Mfg., Inc. v. NPIElec. Inc., 178 A.D.2d 505, 506 [2nd Dept 1991]; Pisula 201 A.D.3d at 97 ["The discussion of particular pieces of evidence... need not be included in an otherwise sufficient complaint as a precondition to their pretrial discoverability or their admissibility at trial. (T)here is a distinction between what is relevant to factual averments in a pleading to give proper notice of transactions and occurrences and to address the material elements of the causes of action, versus what evidence may be relevant and admissible at the trial of the action to prove them."]).
Accordingly, it is hereby
ORDERED that defendants' motion to strike prejudicial content from the Amended Verified Complaint is granted, and it is further
ORDERED that heading "VI." and paragraphs 2, 3, 5, 6, 7, 8, 20, 29, 30, 94, 95, 96, 97, 108, 112, 113, 115, of the complaint are stricken.
This constitutes the decision and order of the court.