Opinion
02-23-2017
WIMBLEDON FINANCING MASTER FUND, LTD., Petitioner–Respondent, v. David BERGSTEIN, et al., Respondent–Appellants, Weston Capital Asset Management LLC, et al., Respondents.
Sills Cummis & Gross P.C., New York (Mark S. Olinsky of counsel), for David Bergstein, Graybox, LLC, Iskra Enterprises, LLC, and Henry N. Jannol, appellants. Winget, Spadafora & Schwartzberg, LLP, New York (Michael Schwartzberg of counsel), for K Jam Media, Inc., appellant. Kaplan Rice LLP, New York (Joseph A. Matteo of counsel), for respondent.
Sills Cummis & Gross P.C., New York (Mark S. Olinsky of counsel), for David Bergstein, Graybox, LLC, Iskra Enterprises, LLC, and Henry N. Jannol, appellants.
Winget, Spadafora & Schwartzberg, LLP, New York (Michael Schwartzberg of counsel), for K Jam Media, Inc., appellant.
Kaplan Rice LLP, New York (Joseph A. Matteo of counsel), for respondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about August 19, 2016, which, to the extent appealed from, granted petitioner's motion for a prejudgment attachment, and denied respondents David Bergstein, Graybox LLC, Iskra Enterprises, LLC, K Jam Media, Inc. and Henry Jannol's motion pursuant to CPLR 3211(a)(4) and (8) to dismiss the proceeding as against them, unanimously affirmed, with costs.
Contrary to respondents' contention, Supreme Court was entitled to consider the affirmation of counsel, which, although not made on personal knowledge, attached numerous documentary exhibits that strongly support petitioner's allegations (see Swiss Bank Corp. v. Mehdi Eatessami, 26 A.D.2d 287, 290–291, 273 N.Y.S.2d 935 [1st Dept.1966] ). The court also properly considered the plea allocution of respondents' co-conspirator. Respondents' reliance on People v. Hardy, 4 N.Y.3d 192, 197, 791 N.Y.S.2d 513, 824 N.E.2d 953 (2005) is misplaced, since that case applies to criminal defendants only, not civil litigants.
The detailed allegations in these materials amply support the court's finding that petitioner has a likelihood of success on the merits.
The same facts establish that respondents are subject to personal jurisdiction as part of a conspiracy that involved the commission of tortious acts in New York (see Lawati v. Montague Morgan Slade Ltd., 102 A.D.3d 427, 961 N.Y.S.2d 5 [1st Dept.2013] ).
Supreme Court providently exercised its "broad discretion" under CPLR 3211(a)(4) (Anonymous v. Anonymous, 136 A.D.3d 506, 507, 26 N.Y.S.3d 10 [1st Dept.2016] ) to deny appellants' motion to dismiss this turnover proceeding under CPLR article 52 based on the pendency of a prior plenary action. While there is some overlap between the parties and claims in this proceeding and the earlier-filed plenary action, the nature of the relief sought is not "substantially the same" (Kent Dev. Co. v. Liccione, 37 N.Y.2d 899, 901, 378 N.Y.S.2d 377, 340 N.E.2d 740 [1975] ), and the respondents named herein are not identical to the defendants sued in the plenary action. Morever, given that both this proceeding and the plenary action are pending before the same Justice, appellants will not be prejudiced by the simultaneous pendency of the two related matters.
FRIEDMAN, J.P., RICHTER, MAZZARELLI, KAHN, JJ., concur.