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Casavecchia v. Mizrahi

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 16, 2008

JOSEPH CASAVECCHIA, SR., RESPONDENT,
v.
WILLIAM W. MIZRAHI, ET AL., APPELLANTS.

In an action, inter alia, to recover damages for conversion and for an injunction compelling the defendants William W. Mizrahi and Hills of Heartland, LLC, to make certain distributions to the members of Hills of Heartland, LLC, the defendants William W. Mizrahi, Hills of Heartland, LLC, and Casa Mason Corp. appeal from (1) an interlocutory judgment of the Supreme Court, Nassau County (Dana, Ct. Atty. Ref.), dated October 5, 2007, which, upon an order of the same court (Warshawsky, J.), dated August 23, 2006, granting the plaintiff's motion for summary judgment on the complaint, and after an inquest to determine the amounts available for distribution by the defendant Hills of Heartland, LLC, determined that the defendant Hills of Heartland, LLC, had the sum of $2,223,666.36 as of December 5, 2006 (corresponding to the amount in that entity's savings account as of that date), and the sum of $317,150.16 as of December 1, 2006 (corresponding to the amount in that entity's checking account as of that date), determined that the defendant Casa Mason Corp. owes to the defe ndant Hills of Heartland, LLC, the sum of $1,225,000, determined that nonparty Centennial Estates, Inc., owes to the defendant Hills of Heartland, LLC, the sum of $172,724.90, determined that nonparty Newvale Corp. owes to the defendant Hills of Heartland, LLC, the sum of $1,000, directed the defendant William W. Mizrahi to pay to the defendant Hills of Heartland, LLC, the sum of $13,637.50 as reimbursement for attorney's fees, and is in favor of the plaintiff and against the defendant Casa Mason Corp. in the principal sum of $100,000, and (2) a final judgment of the same court (Warshawsky, J.), entered November 20, 2007, which, upon the interlocutory judgment and the order dated August 23, 2006, and after the inquest, inter alia, directed the defendant William W. Mizrahi to cause the defendant Hills of Heartland, LLC, to distribute to its members, according to their respective ownership interests, the principal sums of $2,223,666.36 and $317,150.16, directed the defendant William W. Mizrahi to cause the defendant Casa Mason Corp. to pay to the defendant Hills of Heartland, LLC, the sum of $1,225,000, and immediately upon receipt of said sum, to cause the defendant Hills of Heartland, LLC, to distribute said sum to its members according to their respective ownership interests, directed the defendant William W. Mizrahi to cause nonparty Centennial Estates, Inc., to pay the defendant Hills of Heartland, LLC, the sum of $172,724.90, and immediately upon receipt of said sum, to cause the defendant Hills of Heartland, LLC, to distribute said sum to its members according to their respective ownership interests, directed the defendant William W. Mizrahi to cause nonparty Newvale Corp. to pay to the defendant Hills of Heartland, LLC, the sum of $1,000, and immediately upon receipt of said sum, to cause the defendant Hills of Heartland, LLC, to distribute said sum to its members according to their respective ownership interests, and directed the defendant William W. Mizrahi to cause the defendant Hills of Heartland, LLC, to distribute $13,673.50 to its members according to their respective ownership interests.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, WILLIAM E. McCARTHY and THOMAS A. DICKERSON, JJ.

(Index No. 8635/05)

DECISION & ORDER

ORDERED that the appeal from so much of the interlocutory judgment as determined that the defendant Hills of Heartland, LLC, had the sum of $2,223,666.36 as of December 5, 2006 (corresponding to the amount in that entity's savings account as of that date), and the sum of $317,150.16 as of December 1, 2006 (corresponding to the amount in that entity's checking account as of that date), determined that the defendant Casa Mason Corp. owes to the defendant Hills of Heartland, LLC, the sum of $1,225,000, determined that nonparty Centennial Estates, Inc., owes to the defendant Hills of Heartland, LLC, the sum of $172,724.90, and determined that nonparty Newvale Corp. owes to the defendant Hills of Heartland, LLC, the sum of $1,000, is dismissed as those portions of the interlocutory judgment were superseded by the final judgment; and it is further,

ORDERED that the interlocutory judgment is affirmed insofar as reviewed; and it is further,

ORDERED that the final judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff and the defendant William W. Mizrahi are members of and shareholders in the defendant real estate development companies, Hills of Heartland, LLC (hereinafter Hills), and Casa Mason Corp. (hereinafter CMC), respectively. The plaintiff commenced this action after Mizrahi, acting as the manager for Hills, diverted $100,000 of Hills' funds, to which the plaintiff was entitled as a distribution, to CMC as part of a loan to CMC. The plaintiff also sought the return of other funds belonging to Hills which Mizrahi loaned to other companies, and an injunction compelling Mizrahi and Hills to make certain distributions of Hills' profits to that entity's members pursuant to the Hills operating agreement. Mizrahi defended his conduct contending, inter alia, that Hills was not precluded from making loans to other companies, and that Hills could not distribute the remaining balance of its funds because of, among other things, outstanding debts and liabilities. The Supreme Court, inter alia, granted the plaintiff's motion for summary judgment on the complaint, and directed an inquest to determine the amount of Hills funds available for distribution to its members.

Contrary to the defendants' contention, the plaintiff established, prima facie, his entitlement to judgment as a matter of law on each claim, and the defendants failed to raise a triable issue of fact in opposition (see Zuckerman v City of New York, 49 NY2d 557, 562-563).

The court's determination at the inquest was supported by legally sufficient evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 499), and was also warranted by the facts (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499).

The defendants' remaining contentions are either unpreserved for appellate review or without merit.

SPOLZINO, J.P., FLORIO, McCARTHY and DICKERSON, JJ., concur.

20081216

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