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Genger v. Genger

Sup Ct, New York County

October 10, 2013

ARIE GENGER, Plaintiff,
v.
SAGI GENGER and DALIA GENGER, Defendants. Index No. 104249/07

Unpublished Opinion

DECISION/ORDER

CYNTHIA S. KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:

Papers Numbered
Notice of Motion and Affidavits Annexed.................................... 1
Answering Affidavits......................................................................__
Cross-Motion and Affidavits Annexed........................................... 2
Answering Affidavits to Cross-Motion..............................................__
Replying Affidavits............................................................................__
Exhibits........................................................................................... 4

Plaintiff Arie Genger commenced the instant action against his son, defendant Sagi Genger ("Sagi") to recover a money judgment on debt allegedly due to plaintiff on three promissory notes and a stock purchase agreement (collectively referred to as the "Notes"). Plaintiff now moves pursuant to CPLR § 3212 for summary judgment on the Notes. Plaintiff also moves for an Order (1) pursuant to CPLR § 3211(a)(1) and (7) dismissing the counterclaims asserted by Sagi in his amended answer; and (2) pursuant to 22 NYCRR § 130-1.1.g granting him sanctions against Sagi. Both motions are consolidated for disposition. For the reasons set forth below, plaintiffs motion for summary judgment is denied, plaintiffs motion to dismiss Sagi's counterclaims is granted and plaintiffs motion for sanctions is denied.

The relevant facts are as follows. Plaintiff was the defendant in a divorce action commenced by his former wife, defendant Dalia Genger ("Dalia"), on January 31, 2002. In connection with that action, plaintiff and Dalia entered into a Stipulation, dated October 26, 2004, in which they agreed to equitably distribute their marital property as of January 31, 2002. The Stipulation required the parties to list all of their marital assets on certain schedules, which would then be evenly divided between the parties.

Article XII of the Stipulation provides that Dalia has a right to certain audits of the plaintiffs assets. Specifically, upon Dalia's request, plaintiff shall allow Dalia to audit his assets and liabilities as of January 31, 2002 in order to test the correctness and completeness of the items included in the schedules of the parties' property. The Stipulation further provides that if the audits find that plaintiff owned any property on January 31, 2002 which was not listed on the schedules, plaintiff will pay to Dalia one half of the value of the property. It further provides that if the audits find assets not listed on the schedules with a value greater than $250, 000, such error will be presumed willful on plaintiffs part and plaintiff will pay Dalia one half of three times of that value. However, plaintiff will have an opportunity to rebut that presumption of willful error at an arbitration conducted in accordance with the terms of the Stipulation. The Stipulation also stated that the parties' son, Sagi, was to be appointed attorney-in-fact pursuant to a power of attorney, with the power to allocate non-liquid marital assets contained in the schedules so as to effectuate an equal distribution of those assets. Relying on the power of attorney, Sagi instructed that ownership of the Notes under which he was indebted to plaintiff, be transferred to Dalia. Specifically, Sagi attempted to transfer (1) Note 1, which was executed on July 30, 2001 in the amount of $11, 700; (2) Note 2, which was executed on March 12, 2002 in the amount of $100, 000; (3) Note 3, which was executed on January 16, 2004 in the amount of $50, 000; and (4) Note 4, the stock purchase agreement, which was executed on March 1, 2006 and related to the sale of certain Canadian real estate interests.

Dalia commenced an audit pursuant to the terms of the Stipulation, which concluded that plaintiff did not disclose certain marital assets on the schedules contained in the Stipulation, including the Notes, as a result of which Dalia was entitled to additional payments. Pursuant to the unambiguous terms of the Stipulation, plaintiff commenced an arbitration to challenge the findings of the audit regarding the undisclosed assets, including the Notes. In the arbitration proceeding, plaintiff argued that because some of the Notes did not exist on January 31, 2002, they could not constitute marital property which needed to be disclosed or valued. In an award ...


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