Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FLEISHMAN v. HYMAN

September 30, 2004.

BARTON FLEISHMAN, as Assignee of Mir-Bar Realty Corporation CO Miriam Fleishman, Howard Fleishman, Plaintiff,
v.
VICTORIA PESLAK HYMAN, ET AL., Defendants.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Plaintiff Barton Fleishman ("Fleishman") filed this action pro se, as the assignee of Mir-Bar Realty Corporation ("Mir-Bar"), alleging usury and violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq., ("RICO" or "RICO Act") against defendants Victoria Peslak Hyman ("V. Hyman"); Platinum Designs, Inc. ("Platinum Designs"); Steven Hyman ("S. Hyman"); Bruce D. Friedberg ("Friedberg"); Friedberg & Associates ("F&A"); Jack Hollander ("Hollander"); Robert L. Rattet ("Rattet"); Jonathan S. Pasternak ("Pasternak"); Rattet, Hollander & Pasternak, L.L.P. ("RHP"); Northern Equity, Inc.*fn1 ("Northern Equity"); Lawrence I. Linksman ("Linksman"); Bridge Funding, Inc. ("Bridge Funding"); New York Urban, Inc. ("New York Urban"); Fundex Capital Corporation ("Fundex"); Liberty Finance Corporation ("Liberty Finance"); and Anglo African Shipping Company of New York, Inc. ("Anglo African") (collectively, "defendants").*fn2 The defendants have all filed motions to dismiss the complaint, pursuant to Fed.R. Civ. P. 9(b) and 12(b)(6). S. Hyman, V. Hyman, and Platinum Designs (collectively, "Hyman defendants") have also moved for sanctions, pursuant to Fed.R. Civ. P. 11 ("Rule 11").

  II. BACKGROUND

  The plaintiff alleges that in 1997, Mir-Bar sought to prevent the sale, upon a foreclosure judgment, of real estate it owned, located at 27-A Harrison Street, New York, New York ("Property"). According to the complaint, Mir-Bar was referred by Hollander to Linksman for assistance in this effort, and Linksman, in turn, referred Mir-Bar to V. Hyman. For these referrals, Hollander and Linksman allegedly demanded fees of $25,000 each, and were paid $25,000 and $12,500, respectively, by Mir-Bar.*fn3 On April 4, 1997, Mir-Bar entered into an agreement with V. Hyman ("Hyman Agreement"),*fn4 the text of which is incorporated into the complaint and a copy of which is attached thereto. According to the Hyman Agreement, Mir-Bar arranged for V. Hyman to purchase the mortgage, note and foreclosure judgment for the Property from their previous holder. In exchange for a one-time payment of $85,000 and eleven monthly payments of $9,375 by Mir-Bar to V. Hyman, the Hyman Agreement granted Mir-Bar the right, for a period of one year, to purchase the mortgage, note and foreclosure judgment from V. Hyman for $750,000, plus an amount equal to certain costs incurred by V. Hyman in purchasing these instruments from their previous holder. Additionally, the Hyman Agreement required Mir-Bar to place in escrow, inter alia, a fully executed deed transferring title of the Property to V. Hyman. The escrowed items were to be held by Friedberg, an attorney who was an agent of V. Hyman. The complaint characterizes the Hyman Agreement as a $750,000 loan and the payments by Mir-Bar to V. Hyman, Hollander and Linksman as interest. The complaint also alleges that, pursuant to the Hyman Agreement, Fleishman placed certain "equities" in escrow, whose total value was $300,000.

  According to the complaint, Mir-Bar also owned A Café, a business that operated in Manhattan and which was under bankruptcy protection in early 1998. The plaintiff alleges that the bankruptcy court issued an order that would have resulted in the dismissal of the bankruptcy petition had Mir-Bar deposited $125,000 with that court on or before February 5, 1998, at 5:00 p.m. ("bankruptcy order"). Mir-Bar entered into an agreement with Bridge Funding ("Bridge Agreement"), under which Bridge Funding was to lend Mir-Bar $350,000,*fn5 to be used, in part, to make the payment required by the bankruptcy order. The complaint alleges that Linksman, who was president of Bridge Funding, entered into the Bridge Agreement "through his companies," defendants Bridge Funding, Fundex, Liberty Finance and Anglo African. The Bridge Agreement also required Mir-Bar to pay to Bridge Funding a commitment fee of $21,000, of which $3,500 was paid immediately. The Bridge Agreement also required that the loan be secured by a second mortgage upon the Property, and by unspecified assets owned by the plaintiff and Miriam Fleishman, valued at no less than $250,000. The terms of the Bridge Agreement permitted Bridge Funding to cancel that agreement if Mir-Bar did not meet these security requirements.

  According to the complaint, Linksman demanded that the equities owned by Fleishman that were being held in escrow, pursuant to the Hyman Agreement, be released to Bridge Funding. The complaint alleges that S. Hyman demanded a fee of $100,000 in exchange for the release of the equities.*fn6 Mir-Bar alleges that because it refused to pay this fee, Bridge Funding advised Mir-Bar by telephone on the morning of February 5, 1998, that the Bridge Agreement was canceled and that Bridge Funding would retain the $3,500 commitment fee paid to it by Mir-Bar.

  The plaintiff alleges that, later that day, Friedberg contacted Mir-Bar by telephone and offered to deposit the required funds with the bankruptcy court by the end of the day if Mir-Bar agreed to deed the Property to V. Hyman. Mir-Bar rejected this offer.

  Thereafter, according to the complaint, V. Hyman declared the Hyman Agreement to be null and void, and caused a foreclosure sale of the Property to be scheduled for February 24, 1998. The complaint alleges that Friedberg demanded — apparently on V. Hyman's behalf — a payment of $850,000 in order to satisfy the mortgage on the Property. Mir-Bar, which had obtained funds from another source, paid that amount to V. Hyman on February 19, 1998, in satisfaction of the mortgage and note that encumbered the Property.*fn7

  The complaint claims that defendants' actions constitute: 1) usury; 2) violations of New York, New Jersey, California, Arizona and Pennsylvania criminal laws proscribing extortionate credit transactions; and 3) violations of federal criminal laws against mail fraud and wire fraud. In support of the mail fraud and wire fraud allegations, the plaintiff alleges that the defendants made use of the mails, the telephone and other wire communication facilities for the purpose of defrauding Mir-Bar. The complaint contends further that the defendants' conversion of escrow funds to their own use violated an unspecified "State Statute" against theft.

  In further support of his RICO claims, the plaintiff also makes the following allegations: 1) V. Hyman is an enterprise, and all of the defendants, collectively, are an enterprise, within the meaning of 18 U.S.C. § 1961; 2) the defendants' alleged violations of state criminal laws occurred on more than one occasion, within the ten year period preceding the filing of the complaint, and constitute a pattern of racketeering activity, in violation of 18 U.S.C. § 1962; 3) the defendants' alleged violations of federal mail fraud and wire fraud statutes occurred on more than one occasion, within the ten year period preceding the filing of the complaint, and constitute a pattern of racketeering activity, in violation of 18 U.S.C. § 1962; and 4) the defendants "used income derived from a pattern of racketeering activity in the operation of business."

  Also included in the complaint are allegations that the defendants conspired to violate the RICO statute, in violation of 18 U.S.C. § 1964(c), and that the defendants are each liable as principals because they "aided, abetted, [c]ounseled, commanded, induced or procured the commissions of the violations" of the federal mail fraud, wire fraud, and RICO statutes.

  On January 27, 2000, the district judge then assigned to this action issued an order directing the plaintiff to file a RICO statement no later than February 28, 2000 ("RICO Order"). Thereafter, the plaintiff filed an undated RICO statement, which the docket sheet maintained for this action by the Clerk of Court indicates was filed on March 7, 2000. Attached to the RICO statement is a certificate of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.