Fritch v. Bron

CourtUnited States State Supreme Court (New York)
Citation2022 NY Slip Op 50165 (U)
Decision Date01 March 2022
Docket NumberIndex 605622-21
PartiesMaureen Fritch, Plaintiff, v. Igor Bron, RITA BRON, RICHARD SAJIUN, SAJIUN ELECTRIC, INC., JOSEPH FUSCO, G & G ELECTRIC SUPPLY CO. INC., CRISTINA CIOBANU, HOWARD LINDSAY, INTAKE ELECTRICAL CONTRACTING CORP., YELENA PLYUMYANSKAYA, ARKADIY BERDICHEVSKIY, SERGEJS BERLEVS, ROMAN BODNARCHUK, IBNY MANAGEMENT INC., 2264 65TH STREET PROPERTIES, LLC & JOHN DOE "1" THROUGH JOHN DOE "1000", Defendants.

2022 NY Slip Op 50165(U)

Maureen Fritch, Plaintiff,
v.

Igor Bron, RITA BRON, RICHARD SAJIUN, SAJIUN ELECTRIC, INC., JOSEPH FUSCO, G & G ELECTRIC SUPPLY CO.
INC., CRISTINA CIOBANU, HOWARD LINDSAY, INTAKE ELECTRICAL CONTRACTING CORP., YELENA PLYUMYANSKAYA, ARKADIY BERDICHEVSKIY, SERGEJS BERLEVS, ROMAN BODNARCHUK, IBNY MANAGEMENT INC., 2264 65TH STREET PROPERTIES, LLC & JOHN DOE "1" THROUGH JOHN DOE "1000", Defendants.

Index No. 605622-21

Supreme Court, Suffolk County

March 1, 2022


Unpublished Opinion

WELBY, BRADY & GREENBLATT, LLP

Attorneys for Plaintiff

GLENN AGRE BERGMAN & FUENTES LLP

Attorneys for all Defendants except G & G Electrical Supply Co. Inc., and Joseph Fusco

SPIZZ & COOPER, LLP

Attorneys for G & G Electric Supply Co. Inc., and Joseph Fusco

Elizabeth H. Emerson, J.

Upon the following papers read on these motions for various reliefs; Notice of Motion and supporting papers 166-173; 174-177; 178-181; 188-189; 255-263; 267-270; Notice of Cross Motion and supporting papers 184-187; Answering Affidavits and supporting papers 190; 196-203; 234-244;245; 247-250;251-252; 264; Replying Affidavits and supporting papers 191-195; 246; 253-254; 274-276; it is, ORDERED that the motion by the plaintiff (004) for an order partially consolidating this action with actions entitled G & G Electric Supply Co., Inc. v E. Electrical Contracting, LLC (Index No. 605469/2021) and Fritch v Posses (Index No. 612529/2021) is denied; and it is further

ORDERED that the motion by the defendant Igor Bron (005) for an order compelling arbitration of the plaintiff's claims against him and staying the action or dismissing the complaint is granted to the extent of compelling arbitration of the plaintiff's claims against him and staying the action; and it is further

ORDERED that the motion by the remaining defendants (006) for an order dismissing the complaint or staying the action and imposing sanctions on the plaintiff is granted to the extent of staying the action; and it is further

ORDERED that the cross motion by the defendants Joseph Fusco and G & G Electric Supply Co., Inc. (007) for an order imposing sanctions on the plaintiff and her counsel is denied; and it is further

ORDERED that the motion by the plaintiff (009) for an order compelling arbitration of her claims against the defendants Igor Bron, Richard Sajiun, and Saijiun Electric, Inc., and staying this action and two actions entitled G & G Electric Supply Co., Inc. v E. Electrical Contracting, LLC (Index No. 605469/2021) and Fritch v Posses (Index No. 612529/2021) is granted to the extent of compelling arbitration of her claims against the defendant Igor Bron and staying this action; and it is further

ORDERED that the cross motion by the defendants Richard Sajiun and Sajiun Electric, Inc. (011) for an order imposing sanctions on the plaintiff is denied; and it is further

ORDERED that this action is stayed, and the plaintiff and the defendant Igor Bron are directed to proceed to arbitration.

Non-party E. Electrical Contracting, LLC ("EEC") is owned by the plaintiff (51%) and the defendant Igor Bron (49%). On September 27, 2016, the plaintiff and Mr. Bron entered into an amended and restated operating agreement for EEC in which they agreed to arbitrate "any and all disputes relating to or arising under this Agreement[.]" The plaintiff commenced this action on March 31, 2021, alleging that Mr. Bron, aided and abetted by the defendants Rita Bron, Richard Sajiun and Sajiun Electric, Inc. (collectively, the "Sajiun defendants"), among others, diverted corporate assets and opportunities from EEC. The plaintiff's chief causes of action against the Brons and the Sajiun defendants are fraud and aiding and abetting fraud, breach of fiduciary duty and aiding and abetting breach of fiduciary duty, and unjust enrichment. Simultaneously with the commencement of this action, the plaintiff served Mr. Bron with a notice of her intention to arbitrate the claims against him. Both the plaintiff and Mr. Bron move to compel arbitration. Accordingly, the plaintiff and the defendant Igor Bron are directed to proceed to arbitration.

The plaintiff seeks to compel arbitration of her claims against the Sajiun defendants, who are not signatories to EEC's amended and restated operating agreement. Absent an express agreement to arbitrate, courts have recognized only limited theories upon which they are willing to enforce an arbitration agreement against a nonsignatory (Merrill Lynch Inv. Mgrs. v Optibase, Ltd., 337 F.3d 125, 129 [2nd Cir]); see also, TNS Holdings v MKI Sec. Corp., 92 N.Y.2d 335, 339). These theories are limited to (1) incorporation by reference, (2) assumption, (3) agency, (4) veil-piercing/alter ego, and (5) estoppel (Merrill Lynch Inv. Mgrs. v Optibase, Ltd., supra). The plaintiff contends that the Sajiun defendants can be compelled to arbitrate under the agency, veil-piercing/alter ego, and estoppel theories.

Agency is a fiduciary relation that results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other to so act (Merrill Lynch Inv. Mgrs. v Optibase, Ltd., supra at 130). The record does not reflect that Igor Bron signed EEC's amended and restated operating agreement as an agent, either disclosed or undisclosed, of the Sajiun defendants. Moreover, while an agent may bind its nonsignatory principal to an arbitration agreement where the nonsignatory seeks to...

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