| Arfa v Zamir |
| 2010 NY Slip Op 06064 [75 AD3d 443] |
| July 13, 2010 |
| Appellate Division, First Department |
| Rachel L. Arfa et al., Appellants-Respondents, v GadiZamir et al., Defendants. 546-552 West 146th Street LLC et al.,Intervenors-Defendants/Counterclaim Plaintiffs/Cross-Claim Plaintiffs-Respondents-Appellant,et al., Intervenor-Defendant/Counterclaim-Plaintiff/Cross-Claim Plaintiff, v Rachel L. Arfa et al.,Counterclaim-Defendants-Appellants-Respondents, et al., Cross-Claim Defendants. (AndAnother Action.) |
—[*1] Balber Pickard Maldonado & Van Der Tuin, P.C., New York (John Van Der Tuin ofcounsel), for respondents-appellants.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered September 16,2008, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion todismiss intervenors-defendants' claims for an accounting and for waste and mismanagement asagainst plaintiff Rachel L. Arfa and granted plaintiffs' and cross-claim defendants' motions todismiss the claim for statutory restitution, penalties and fees pursuant to Real Property Law§ 440-a, unanimously affirmed, without costs.
Intervenors-defendants, which are New York limited liability companies, allege in support oftheir first and fifth claims (respectively, for an accounting and for waste and [*2]mismanagement) that they were managed by Harlem Holdings,LLC, a Delaware limited liability company; that the 60% owner of Harlem Holdings was ArgeltLLC, an entity owned in part by plaintiff Arfa; that Arfa, in addition to being (through Argelt) abeneficial owner of Harlem Holdings, was one of Harlem Holdings' three managers; and thatArfa used her resulting control over intervenors-defendants' property to benefit herself atintervenors-defendants' expense. As it is alleged that Arfa was a beneficial owner and fiduciaryof the entity that managed intervenors-defendants, intervenors-defendants have stated causes ofaction sounding in breach of fiduciary duty against her under both New York and Delaware law(see Bullmore v Ernst & YoungCayman Is., 45 AD3d 461 [2007]; In re Treco, 229 BR 280, 289 [1999],affd 239 BR 36 [SD NY 1999], vacated on other grounds 240 F3d 148 [2d Cir2001]; Bay Cent. Apts. Owner, LLC v Emery Bay PKI, LLC, 2009 WL 1124451, *9-10,2009 Del Ch LEXIS 54, *32-39 [Del Ch 2009]; In re USACafes, L.P. Litig., 600 A2d43, 48-50 [Del Ch 1991]).
Intervenors-defendants' second claim alleges that cross-claim defendant AmeliteManagement Services, Inc., the management company owned by plaintiffs Arfa and AlexanderShpigel and defendant/cross-claim defendant Gadi Zamir, while not licensed as a real estatebroker, performed services for which a license is required under Real Property Law §440-a. However, the documentary evidence demonstrates that Amelite, which admitted that itwas not licensed, delegated the authority to perform those services to third-party unaffiliatedlicensed property management companies and therefore did not violate the statute by acting as areal estate broker.
We have considered the parties' remaining arguments for affirmative relief and find themunavailing. Concur—Mazzarelli, J.P., Andrias, Friedman, Nardelli and Moskowitz, JJ.[Prior Case History: 21 Misc 3d 1101(A), 2008 NY Slip Op 51908(U).]