Donna O. Goldoff, Individually and as Executrix of the Estate of Robert Goldoff, Plaintiffs,
Peck Slip Associates Group, LLC and Barry Goldoff, Defendants. Index No. 150188/13
DECISION AND ORDER
KENNEY, JOAN M., J.
Recitation, as required by CPLR 2219(a), of the papers considered in review of this motion to dismiss.
Notice of Motion, Affirmations, and Exhibits 1-9 Opposition
Affirmation and Exhibits 10-13 .
Reply Affirmation and Exhibits 14-15
In this action, plaintiffs move for an Order, pursuant to CPLR 3211 (a)(5), dismissing the counterclaims against them, and for an Order, pursuant to CPLR 3025(b), for leave to file an amended complaint.
This action involves claims arising from the operation and management of Peck Slip Associates Group, LLC (Peck) by Barry Goldoff (Barry). Barry and Robert Goldoff (Robert) were brothers, with each owning a 50% interest in Peck.
Peck owns three real estate properties, consisting of: a commercial property in Garland, Texas (leased to Walgreen's); a commercial property in South Carolina (leased to BiLo Supermarket [Bilo]); and a residential "cottage" property located in Awendaw, South Carolina (the cottage).
Plaintiffs allege that Barry has been residing at the cottage on a full-time basis during the winter months, for the past 6 years, without paying anything to Peck for his use and occupancy.
The distribution of rent from the 3 properties had been the source of dispute between the brothers, and were resolved by two separate agreements. With respect to rent generated from the 3 properties, Barry and Robert entered into an agreement in July of 2008 (the 2008 agreement). In January of 2010, the brothers entered into a second agreement with respect to the income received from the properties (the 2010 agreement). Pursuant to the 2010 agreement, the income from the properties would be collected and disbursed by Peck's accountant on an equal basis each month between Barry and Robert after payment of certain expenses.
One of the deductions was a payment to plaintiff Donna Goldoff (Donna) in connection with a loan that she had previously made to Peck in ...