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VARSAMES v. PALAZZOLO

May 24, 2000

LOUIS VARSAMES, JR. AND PAUL A. VARSAMES, PLAINTIFFS,
V.
FRANK PALAZZOLO, JOSEPH MANGI, ERIC GLADSTEIN, FRANK BOCHICCHIO, JOHN PERYKASZ, PALAZZOLO INVESTMENT GROUP, MANGI GLADSTEIN PROPERTIES CORP. AND TOWNSEND MANAGEMENT I & II CORP., DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

  OPINION

Plaintiffs Louis Varsames, Jr. and Paul Varsames (collectively, "the Varsames") move for appointment of a receiver pendente lite for Townsend Management I & II Corp. ("Townsend") and the real property located at 621-623 and 625-627 Manida Street, Bronx, New York (the "Manida Street Property") or, in the alternative, for an interim order granting them possession, management, and control of Townsend and the Manida Street Property during the pendency of this action. This motion is opposed by defendants Joseph Mangi, Eric Gladstein ("Gladstein"), Frank Bochicchio ("Bochicchio"), John Perykasz ("Perykasz"), Mangi Gladstein Properties Corp. ("Mangi Gladstein Properties"), and Townsend Management I & II Corp. ("Townsend") (collectively, the "Mangi Defendants"). For the reasons set forth below, the motion for appointment of a receiver is denied, and the motion for an interim order granting the Varsames possession of the Townsend stock and, therefore, the right to manage and control of Townsend and the Manida Street property is granted.

The Parties

Plaintiff Louis Varsames, Jr., is a resident of Florida. Plaintiff Paul Varsames is a resident of Connecticut. The Varsames are in the construction business.

Defendants Mangi and Gladstein are residents of New York. Mangi and Gladstein are in the business of assisting persons in purchasing properties and thereafter managing said properties.

Defendants Bochicchio and Perykasz are residents of New York.

Defendant Mangi Gladstein Properties is a corporation existing under the laws of New York with its offices in Scarsdale, New York.

Defendant Townsend is a corporation existing under the laws of New York with its principal place of business in Scarsdale, New York.

Prior Proceedings

The complaint in the instant action was filed on February 22, 2000 alleging breach of contract, unjust enrichment, fraud, violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), civil conspiracy, tortious interference with contract relations, conversion, and negligent misrepresentation. In their complaint the Varsames seek appointment of a receiver over Townsend and the Manida Street Property, damages, and rescission of the contract.

Oral argument was heard on the motion for a receiver on March 15, 2000 by this Court. The Court reserved decision on the motion and scheduled an expedited trial for May 1, 2000. At a hearing held on April 5, 2000, however, the Court informed the parties that the trial would have to be postponed and that the Court would consider a renewed request for appointment of a receiver.

The Varsames filed the instant motion on April 17, 2000. The parties had previously submitted pleadings, affidavits, and exhibits in relation to the motion. No evidentiary hearing was held or required with respect to the motion in the alternative for injunctive relief. The evidence in the form of affidavits and exhibits was sufficient based on the circumstances of the case and, moreover, the underlying facts upon which the motion turns are either undisputed or resolution of any existing disputes will not affect the Varsames' entitlement to the relief granted herein. See Drywall Tapers & Pointers Local 1974 v. Local 530, 954 F.2d 69, 76-77 (2d Cir. 1992); Brown v. Giuliani, 158 F.R.D. 251, 254 (E.D.N.Y. 1994). Oral argument was heard on May 3, at which time the matter was deemed fully submitted.

Also pending before the Court is a motion joined in by all defendants to dismiss the RICO and civil conspiracy claims in the Varsames complaint, and a motion by the Varsames to dismiss the Mangi Defendants' counterclaims.*fn1 The Court reserves decision on these motions.

Findings of Fact

In or about February 1999, discussions occurred between the Varsames and Gladstein, Mangi, and Frank Palazzolo ("Palazzolo") about a real estate investment involving the purchase and management of an apartment complex located ...


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