Shirley Elfie Life Trust v. Pinkesz
| Decision Date | 09 August 2014 |
| Docket Number | No. 507958/13.,507958/13. |
| Citation | 997 N.Y.S.2d 670 (Table) |
| Court | New York Supreme Court |
| Parties | SHIRLEY ELFIE LIFE TRUST and Pinkesz Mutual Holdings LLC, Plaintiff, v. Edward PINKESZ a/k/a Joseph Pinkesz a/k/a Chaim Yossi Pinkesz, Anthony Pinkesz a/k/a Ushi Pinkesz, Joel Wurtzberger, Rabbi Israel M. Kenig and The Rabbinical Court Orech Mishor of Boro Park, Defendant. |
Regosin, Edwards, Stone, Feder, for Plaintiff.
Anthony Pinkesk, pro se.
Edward Pinkesk, pro se.
Joel Wurtzberger, pro se.
Orech Mishor, pro se.
Rabbi Israel Kenig, pro se.
Shirley Elfie Life Trust and Pinkesz Mutual Holdings LLC (PMH) (collectively, the plaintiffs) move via order to show cause, in sequence No.1, for an order staying a special proceeding also before this court, Matter of Pinkesz v. Wertzberger (Sup Ct, Kings County, Lewis, J., index No. 14531/13). Defendants Israel Koenig, sued herein as “Rabbi Israel M. Kenig,” (Rabbi Koenig) and the Rabbinical Court Orech Mishor of Boro Park (the Beth Din) (collectively, the Beth Din defendants) cross-move, in sequence # 2, for an order, pursuant to CPLR § 3211(a)(7), dismissing the action as against them or, alternatively, granting them leave to serve a responsive pleading. The plaintiffs move, in sequence # 3, for an order compelling Edward Pinkesz a/k/a Joseph Pinkesz a/k/a Chaim Yossi Pinkesz (Edward Pinkesz), Anthony Pinkesz a/k/a Ushi Pinkesz (Anthony Pinkesz), Joel Wurtzberger (Wurtzberger) and the Beth Din defendants (collectively, the defendants) to appear for depositions. Edward Pinkesz moves and Anthony Pinkesz cross-moves, in sequences # 4 and # 5, respectively, for orders, pursuant to CPLR § 3211(a)(7), dismissing the plaintiffs' claims for money had and received, specific performance, contractual interference, conversion, unjust enrichment, fraud, breach of fiduciary duty, equitable accounting and attorney's fees, striking the plaintiffs' punitive-damages demand and dismissing all claims as asserted by Shirley Elfie Life Trust.
Edward Pinkesz, Anthony Pinkesz and Wurtzberger were engaged in business surrounding life settlement transactions, also referred to as viatical settlements, in which a person or entity purchases and maintains an existing life insurance policy as an investment, paying the original holder a lump sum. In early 2011, Wurtzberger and Anthony Pinkesz jointly purchased life insurance policies, each with a face value of $5 million, covering Jacob Pinkesz (the Jacob Policy) and Julius Pinkesz (the Julius Policy) from a Philadelphia synagogue. Edward Pinkesz, brother of Anthony Pinkesz, acted as a broker for this purchase of the Jacob Policy. Thereafter, a dispute developed between Wurtzberger and Edward Pinkesz, which they agreed to settle before Rabbi Koenig and the Beth Din. The Beth Din issued a ruling, dated May 5, 2011, (the 2011 Decision) which required Wurtzberger to give Edward Pinkesz a brokerage commission of $37,500 plus a $425,000 loan.
In June 2011, Wurtzberger, purportedly acting as the agent of PMH, purchased Anthony Pinkesz's interest in the Jacob Policy for $1 .5 million. Wurtzberger then transferred the policy to PMH, of which Shirley Elfie Life Trust is a 50% member. Jacob Pinkesz died during the summer of 2012. The plaintiffs allege that Wurtzberger received the full $5–million death benefit upon Jacob Pinkesz's death, but never delivered any of that sum to PMH.
Rabbi Koenig called Wurtzberger and Edward Pinkesz back to the Beth Din in July 2013. The circumstances and substance of this meeting remain unclear and disputed. Rabbi Koenig then issued another ruling, dated July 22, 2013, (the 2013 Decision) which awarded Edward Pinkesz $3.75 million. Edward Pinkesz subsequently commenced a special proceeding against Wurtzberger before this court to confirm the 2013 Decision (the Arbitration–Confirmation proceeding), and Wurtzberger cross-moved to vacate the 2013 Decision (see Matter of Pinkesz v. Wertzberger, Sup Ct, Kings County, Lewis, J., index No. 14531/13). A concurrently issued decision in that proceeding now vacates the 2013 Decision.
The plaintiffs commenced this action on December 15, 2013 and their complaint, verified by PMH's managing member, Alan Rubenstein (Rubenstein), alleged causes of action for breach of contract, money had and received and specific performance against Wurtzberger, Edward Pinkesz and Anthony Pinkesz, contractual interference against Edward Pinkesz, Anthony Pinkesz and the Beth Din defendants and conversion, unjust enrichment, fraud, breach of fiduciary duty, equitable accounting and attorney's fees against all the defendants. The plaintiffs alleged that the defendants had jointly sought to deprive the plaintiffs of the $5–million death benefit of the Jacob Policy, for which they had paid over $2 million. According to the plaintiffs, Wurtzberger received the entire $5 million upon Jacob Pinkesz's death, but has failed deliver it to PMH. The plaintiffs asserted that the 2013 Decision constituted merely a scheme by which the defendants were attempting to prevent the plaintiffs from receiving the death benefit. The plaintiffs alleged that the defendants generally acted in bad faith and with gross disregard for the plaintiffs' interests. The plaintiffs claimed that Wurtzberger, Edward Pinkesz and Anthony Pinkesz, acted as their agents, whereas the Beth Din the defendants owed them fiduciary duties because they held themselves out as a neutral arbitral forum.
(1)
The plaintiffs now move, by order to show cause, for an order staying any proceedings concerning the 2011 or 2013 Decisions until after discovery herein and an opportunity for summary judgment motions. They claim that Rabbi Koenig issued the 2013 Decision as part of the defendants' “devious, deceptive and disingenuous conspiratorial efforts” to keep the Jacob Policy benefits under Wurtzberger's control and away from PMH. Hence, the plaintiffs urge that the Arbitration–Confirmation proceeding must be stayed until after discovery herein is complete to prevent dissipation of the death benefit.
(2)
Edward Pinkesz, in opposition, alleges that Wurtzberger “is behind the The plaintiff [PMH], and has commenced this action with the obvious attempt to enjoin me, through a collateral action, from confirming the arbitration award, or alternatively, seeks to harass me through judicial process.” Rubenstein, Edward Pinkesz urges, has no personal knowledge of the facts underlying the action, and he emphasizes that the plaintiffs' allegations concerning the Beth Din decisions are “upon information and belief.” Edward Pinkesz argues that he never knew of any member of PMH other than Wurtzberger and that Wurtzberger sought out other people to become members of PMH in order to commence the instant action. If this motion is granted, Edward Pinkesz contends, the court should compel the plaintiffs to post a $2–million bond. He claims that the plaintiffs materially misstated the underlying facts by ignoring language in the agreement transferring the Jacob Policy from Anthony Pinkesz to Wurtzberger that reserved a potential interest for Edward Pinkesz, to be determined by the Beth Din. Edward Pinkesz contends that the misconduct which the plaintiffs allege was all committed by Wurtzberger.
Edward Pinkesz also submits a supplemental opposition to the plaintiffs' order to show cause, in which he introduces his own affidavit that was submitted in opposition to Wurtzberger's cross motion to vacate the 2013 Decision in the Arbitration–Confirmation proceeding. In that affidavit, he argues, among other things, that the 2013 Decision awarded him $3.75 million based not only on his interest in the Jacob Policy, but also in the Julius Policy. He contends that the 2011 Decision represented only an interim arbitration ruling and that the $425,000 award was granted to him only as a brokerage commission.
(3)
Anthony Pinkesz argues, in opposition to the plaintiffs' order to show cause, that the plaintiffs fail to sufficiently show the necessity of a preliminary injunction with clear and convincing evidence. He urges that Rubenstein lacks personal knowledge of the interactions between Wurtzberger, Edward Pinkesz, Anthony Pinkesz and the Beth Din defendants. Furthermore, Anthony Pinkesz contends, the plaintiffs' adequate remedy of law in the form of money damages precludes now granting them a preliminary injunction. Like Edward Pinkesz, Anthony Pinkesz argues that, if a preliminary injunction is granted, it should be conditioned on the plaintiffs' posting of a $2–million bond.
The Beth Din defendants cross-move, in sequence # 2, for an order dismissing the action as against them, pursuant to CPLR § 3016(b), CPLR § 3211(a)(7) and the doctrine of arbitral immunity, or, alternatively, granting them leave to serve a responsive pleading under CPLR § 3024. The Beth Din defendants argue that arbitral immunity shields arbitrators from all liability for acts performed in the arbitral capacity to prevent potential harassment or intimidation of arbitrators. Arbitral immunity requires dismissal, the Beth Din defendants argue, even of accusations of fraud. They also contend that the plaintiffs have failed to state a cause of action against the Beth Din defendants, as an arbitration award binds only the parties thereto. As the plaintiffs were not party to the contested arbitration decisions, the Beth Din defendants assert, they cannot have suffered harm or prejudice from those rulings. The Beth Din defendants additionally argue that the plaintiffs' failure to plead fraud with the particularity required by CPLR § 3016(b) requires dismissing the complaint. In the alternative, the Beth Din defendants state that they adopt the arguments advanced by Edward Pinkesz in his dismissal motion (see discussion of motion sequence # 4, infra ). The Beth Din defendants also seek, as an alternative...
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