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Rebecca Larew v. andrew

January 10, 2012

REBECCA LAREW PLAINTIFF,
v.
ANDREW LAREW ET AL. DEFENDANTS.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

OPINION AND ORDER

Plaintiff Rebecca Larew ("Rebecca") has brought suit against her former husband Andrew Larew ("Andrew"); Tony Fiorito; John Funiciello; Christine Wojcik; Alan Doyle; Charles Sangster; John Shannon; Paula Deckman; Central New York Associates, LLC ("CNY"); Atrium Associates, LLC ("Atrium"); 224 Harrison Associates, LLC ("Harrison"); Armory Associates, LLC ("Armory"); 65-35 Queens Associates, LLC ("Queens"); 460 North Franklin Street Associates, LLC ("Franklin"); 1401 Erie Boulevard East, LLC ("Erie"); Vinegar Hill, LLC ("Vinegar Hill"); Brittonfield Associates, LLC ("Brittonfield"); Soundview Real Estate Partners ("Soundview"); and Larew, Doyle & Associates, LLC ("LDA") (collectively, "the defendants") pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and state law. The defendants have filed a motion pursuant to 28 U.S.C. § 1404(a) seeking to transfer the case to the United States District Court for the Northern District of New York. For the following reasons, defendants' motion is granted.

I. BACKGROUND

A. Procedural History

This action started when plaintiff filed a complaint in the Supreme Court of the State of New York, County of New York. See Summons and Complaint, filed July 18, 2011 (annexed as Ex. A to Notice of Removal, filed Aug. 18, 2011 (Docket # 1) ("Notice of Removal")) ("Compl."). The defendants removed the case to United States District Court for the Southern District of New York (the "Southern District"). See Notice of Removal. Shortly thereafter, the defendants filed the instant motion seeking a transfer of the action to the United States District Court for the Northern District of New York (the "Northern District").*fn1

B. Facts Relevant to Venue

1. Allegations in the Complaint

The complaint alleges that defendants have acted as a criminal organization to deprive Rebecca of money which was awarded to her in her divorce action against Andrew in Connecticut state court. See Compl. ¶¶ 3, 5, 41. Specifically, Rebecca argues that Andrew and his co-defendants conspired to hide his assets, thereby lowering the amount he would have to pay under the court-ordered support agreement in their divorce proceeding. See id. ¶¶ 1, 3, 4, 42, 48, 55. The complaint asserts the following claims: (1) RICO; (2) fraud; (3) conversion; (4) violation of the New York State Debtor and Creditor Law; and (5) "prima facie tort -- economic injury." See Compl. ¶¶ 86-118.

2. The Parties

Rebecca is a resident of Southport, Connecticut. Id. ¶ 7. At the time of the filing of her opposition papers on this motion, Rebecca's sole income was a $5,500 monthly support payment, which was scheduled to end on October 20, 2011. Rebecca Aff. ¶ 3. While Rebecca states that she is a "divorced stay-at-home mother," id., Andrew was awarded "sole legal and physical custody" of their children on July 1, 2011, Andrew Aff. ¶¶ 4, 5.

Andrew is a "real estate developer with interests throughout New York State." Compl. ¶ 8. He is currently married to defendant Wojcik. Id. ¶ 11. Andrew and Wojcik currently reside in New York, New York, id. ¶¶ 8, 11, in the Southern District, although they did not live there during the time period of most of the events in the complaint, see Andrew Aff. ¶ 7. Defendants Fiorito and Funiciello are friends and business associates of Andrew's. Compl. ¶¶ 9, 10. Funiciello resides in Baldwinsville, New York, id. ¶ 10, which is located in the Northern District. Fiorito resides in Liverpool, New York, Fiorito Aff. ¶ 3, which is also located in the Northern District. Defendant Doyle is a friend and business associate of Andrew's. Compl. ¶ 12. His business address is in Providence, Rhode Island, id., though he has a business based in New York County in the Southern District, see Freeth Decl. ¶ 4. Defendant Sangster is a business partner of Andrew's. Compl. ¶ 13. He resides in Manlius, New York, id., which is in the Northern District. Defendant Shannon is an accountant for Andrew. Id. ¶ 14. His last known business address was in Oneida, New York, id., which is also in the Northern District. Defendant Deckman is another accountant for Andrew. Id. ¶ 15. Her principal place of business is in Syracuse, New York, id., which is also in the Northern District.

Defendants CNY, Atrium, Harrison, Armory, Queens, Franklin, Erie, Vinegar Hill, and Brittonfield are New York limited liability companies. Id. ¶¶ 16-24. Their principal places of business are in Syracuse, New York, id., in the Northern District. Defendant Soundview is a Delaware limited liability company. Id. ¶ 25. Its principal place of business is in Stamford, Connecticut. Id. Defendant LDA is a New York limited liability company. Id. ¶ 26. Its principal place of business is in New York, New York, id., which is in the Southern District.

Defendants Atrium, Harrison, Armory, Vinegar Hill, Franklin, Erie, and Queens are single purpose entities each of which "owns a single project." Fiorito Aff. ¶ 13. They keep their books and records, including financial information and official corporate records, in Syracuse, New York, Fiorito Aff. ¶ 6, which is in the Northern District. They are managed by a management company, Partnership Properties, which also has its principal office in Syracuse, New York, and keeps its books and records there. Id. ¶¶ 7-10. Defendant Vinegar Hill owns property in Oswego, New York, id. ¶ 13(d), which is located in the Northern District. Defendant Brittonfield owns property in Dewitt, New York, id. ¶ 69, which is also located in the Northern District. Defendants Atrium, Harrison, Armory, Franklin, and Erie each own property in Syracuse, New York, Fiorito Aff. ¶¶ 13(a)-(c), (e), (f), in the Northern District. Queens owns a building in Queens, New York, id. ¶ 13(g), which is located in the Eastern District of New York. Defendant LDA owns property in Killington, Vermont. Compl. ¶ 70.

II. DISCUSSION

A. Law Governing Motions to Transfer to Another Judicial District Absent the consent of all parties, 28 U.S.C. § 1404(a) provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). Thus, the decision whether to transfer a case from one judicial district to another absent unanimous consent requires a two-part inquiry. First, the court must determine whether the case sought to be transferred could have been brought in the proposed transferee court. Second, the court must decide whether transfer is warranted for the convenience of parties and witnesses and is in the interest of justice. See, e.g., Whitehaus Collection v. Barclay Prods., Ltd., 2011 WL 4036097, at *1 (S.D.N.Y. Aug. 29, 2011); Matta v. Roswell Park Cancer Inst. Corp., 2011 WL 3104889, at *3 (S.D.N.Y. July 26, 2011). Here, it is undisputed that this action could have been brought in the Northern District. Therefore, only the second part of the inquiry is at issue.

The Second Circuit has held that "courts should give deference to a plaintiff's choice of forum." Iragorri v. United Techs. Corp., 274 F.3d 65, 70 (2d Cir. 2001). Nonetheless, "if the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper." Id. at 71 (citations omitted). Whether transfer should occur is "determined upon notions of convenience and fairness on a case-by-case basis." In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)); accord Orb Factory, Ltd. v. Design Sci. Toys, Ltd., 6 F. Supp. 2d 203, 208 (S.D.N.Y. 1998). The moving party must make a "clear and convincing" showing that the balance of convenience favors transfer. N.Y. Marine & Gen. Ins. ...


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