| Yemini v Goldberg |
| 2009 NY Slip Op 02353 [60 AD3d 935] |
| March 24, 2009 |
| Appellate Division, Second Department |
| Ari Yemini, Also Known as Arieh Yemini, et al.,Respondents, v Oded Goldberg et al., Appellant, et al., Defendants. (And a Third-PartyAction.) |
—[*1] Steven Cohn, P.C., Carle Place, N.Y. (Susan E. Dantzig of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract, the defendants OdedGoldberg and Goldberg Commodities, Inc., appeal (1) from an order of the Supreme Court,Nassau County (Austin, J.), dated June 19, 2007, which denied their motion for a preliminaryinjunction enjoining the plaintiff Ari Yemini, also known as Arieh Yemini, from, inter alia,taking any unilateral action concerning ANO, Inc., without their consent, and (2), as limited bytheir brief, from so much of an order of the same court (Bucaria, J.), dated November 21, 2007,as denied that branch of their motion which was for leave to renew the motion for a preliminaryinjunction.
Ordered that the order dated June 19, 2007 is modified, on the law, by deleting the provisionthereof denying that branch of the motion of the defendants Oded Goldberg and GoldbergCommodities, Inc., which was to enjoin the plaintiff Ari Yemini, also known as Arieh Yemini,from taking any unilateral action concerning ANO, Inc., without their consent, and substitutingtherefor a provision granting that branch of the motion; as so modified, the order is affirmed, andthe matter is remitted to the Supreme Court, Nassau County, for the fixing of an appropriateundertaking pursuant to CPLR 6312; and it is further,
Ordered that the appeal from so much of the order dated November 21, 2007 as denied that[*2]branch of the motion of the defendants Oded Goldberg andGoldberg Commodities, Inc., which was for leave to renew that branch of their motion whichwas to enjoin the plaintiff Ari Yemini, also known as Arieh Yemini, from taking any unilateralaction concerning ANO, Inc., without their consent is dismissed as academic in light of ourdetermination on the appeal from the order dated June 19, 2007; and it is further,
Ordered that the order dated November 21, 2007 is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the defendants Oded Goldberg and GoldbergCommodities, Inc.
The plaintiffs commenced this action alleging, inter alia, that the defendants Oded Goldbergand Goldberg Commodities, Inc. (hereinafter the defendants), failed to make certain capitalcontributions to Peninsula Holdings, LLC. In their amended answer, the defendants added ANO,Inc. (hereinafter ANO), as a counterclaim defendant. This appeal relates solely to the defendants'claim that they control a 50% interest in ANO, which was formed to purchase an interest in anentity called Candlewood Holdings, Inc. The defendant Oded Goldberg (hereinafter Goldberg)entered into a nominee agreement with the plaintiff Ari Yemini, also known as Arieh Yemini(hereinafter Yemini), in which Goldberg, as the principal, appointed Yemini as his nominee withrespect to the defendants' 50% ownership of ANO. The defendants sought, among other relief, apreliminary injunction to prevent Yemini from taking any unilateral action concerning ANOwithout the defendants' consent.
To be entitled to a preliminary injunction, a movant must establish (1) the likelihood ofsuccess on the merits, (2) irreparable injury absent granting the preliminary injunction, and (3) abalancing of the equities in the movant's favor (see CPLR 6312 [c]; Winzelberg v1319 50th Realty Corp., 52 AD3d 700, 701 [2008]; Stockley v Gorelik, 24 AD3d535 [2005]). The defendants established the likelihood of success on the merits, relying on,among other things, the nominee agreement, which established that Goldberg owned 50% of thestock of ANO, and that, as part of the nominee agreement, Yemini, as Goldberg's nominee,agreed to "take no actions on behalf of the Principal or with regard to the Principal's interest inthe Corporation, unless so instructed."
Parties are free to make their own arrangements regarding beneficial ownership of securitiesas definitive between them (see UCC 8-207 [a], Comment 3; Delaware v New York,507 US 490, 505 [1993]). This nominee agreement "constituted a declaration of trust"(Brotman v Meyers, 41 AD2d 547 [1973]). It is irrelevant that Yemini at all timesretained ownership of the ANO stock certificates (see Matter of Benincasa v Garrubbo,141 AD2d 636, 638 [1988]). Supporting the defendants' showing of likelihood of success onthe merits, there is no evidence in the record to contradict Goldberg's assertion that hetransferred his interest in ANO to Goldberg Securities, Inc., which he solely owned.Additionally, because control and management of ANO and its holdings were at stake, moneydamages were not sufficient (see Vanderminden v Vanderminden, 226 AD2d 1037[1996]). Thus, the defendants established the element of irreparable injury. The defendants alsoestablished that a balancing of the equities favored granting the injunction.
The plaintiffs' contention that the defendants were judicially estopped from asserting anownership [*3]interest in ANO is without merit because theevidence before the court did not establish that Goldberg secured a judgment in his favor in theproceeding in which he allegedly took an inconsistent position (see Matter of One BeaconIns. Co. v Espinoza, 37 AD3d 607, 608 [2007]).
The defendants' remaining contentions in connection with the order dated June 19, 2007 arewithout merit, or need not be reached in light of our determination. Further, the defendants'contentions regarding the denial of that branch of their motion which was for leave to renewhave been rendered academic in light of our determination or are without merit. Spolzino, J.P.,Angiolillo, Dickerson and Belen, JJ., concur. [See 15 Misc 3d 1142(A), 2007 NY SlipOp 51117(U).]