SHORT FORM ORDER

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NASSAU

Present:HON. DANIEL PALMIERIActing Justice Supreme Court

--------------------------------------------------------------------- xMITRA ADHAMI,

TRIAL TERM PART: 48

INDEX NO. : 020484/07Plaintiff,

-against-MOTION DATE:I-18-SUBMIT DATE:2-11-SEQ. NUMBER - 001

ARD ADHAI, F ARAN ADHAMI, KlANADHAMI, KOUROUSH ADHAMI, DA VOUDADHAMI, PARVIN ADHAMI, GAA ASHOORl,JOSEPH ALAGHABAND, EDMOND ADELIPOUR,30-51 STEINWAY STREET, LLC, 30-71 STEINWAY,LLC, 30-93 STEINWAY STREET CORP.,ADELIPOUR-ADHAMI ENTERPRISES, SANTROPEZ, INC. d/b/a ESQUIRE, MORTIMER'CUSTOM CLOTHIER, INC., ESQUIRE CLOTHING,INC., d/b/a EQUIRE, SEGRETO, INC., d/b/a LEOPOLD,EXIR INTERNATIONAL, INC., ADCO TEXTILE,INC., TIVOLI DEVELOPMENT, LLC, LEOPOLDDEVELOPMENT, LLC, 14 AVENUE ASSOCIATES,LLC, GSM mOLDING, LLC,

Defendants.---------------------------------------------------------------------x

The following papers have been read on this motion:

Notice of Motion, dated 12- 07......................................Affirmation in Support, dated 12- 07...........................Memorandum in Support, dated 12- 07....................Affirmation in Opposition, dated 1-29-08.....................Reply Memorandum of Law, dated 2- 08....................

The motion by the moving defendants (Mortimer s Custom Clothier, Inc. , and Adco

Textile, Inc. , have not moved) to dismiss this action pursuant to CPLR 93211(a)7 and 93211

(a) 4 is granted as to all defendant' s except Farid (Farid) Adhami, Farzan (Farzan) Adhami

and Kian (Kian) Adhami.

Plaintiff and one of the defendants, Farid are maried and presently are engaged in an

action for divorce (the Divorce Action) initiated by plaintiff against Farid in this County.

The other defendants are persons with whom Farid is alleged to have a business relationship,

and business organizations in which some or all of the defendants have a financial interest.

The defendants are: (a) Farid Adhami, the plaintiff s husband and the defendant in the

divorce action; (b) Farzan, Kian and Kouroush Adhami, brothers ofFarid; (c) Davoud and

Parin Adhami, parents ofFarid; (d) Farid' s business associates, Ashoori, Alaghaband and

Adelepour; and (e) various business organizations, (the Business Organizations) in which it

is alleged that Farid has secret and undisclosed business interests.

The complaint, which stared with five causes of action (now reduced to four as the

fift cause of action has been withdrawn) arises out of plaintiff s claim that her husband

Farid has secreted or transferred assets in order to frstrate her claims of equitable

distribution in the Divorce Action.

As this motion is made pursuant to CPLR3211(a)(7) prior to answer, the Cour must

look within the four comers of the complaint, and if any cause of action is discemable

therefrom, the motion should fail. See, e. g., Guggenheimer Ginzburg, 43 NY2d 268, 275

(1977). In making this determination, the factual allegations asserted in the pleading are to

be accepted as tre, and the plaintiff is to be accorded the benefit of every favorable

inference that may be drawn therefrom. Leon Martinez 84 NY2d 83 (1994); Konidaris

Aeneas Capital Mgt., LP, 8 AD3d 244 (2d Dept. 2004).

A court may consider evidence outside a pleading to test if a plaintiff has a cause of

action, including affidavits received for the limited purpose of remedying defects. Morris

v. Morris, 306 AD2d 449 (2d Dept. 2003); Davis v. CCF Capital Corp. 277 AD2d 342 (2d

Dept. 2000). Here the Court has considered the affirmation and affidavits of plaintiffs

counsel and plaintiff for such purpose.

CPLR 93211 (a).4 permits an action to be dismissed if"there is another action pending

between the same parties for the same cause of action ..." However, a Court may, in

appropriate cases, decline to do so and instead "make such order as justice requires.

There can be no doubt that as to Farid, this subsection is applicable to all causes of

action except those which invoke New York' s Debtor and Creditor Law (DCL) because, as

defendants correctly point out, the same requests for relief that are made against defendant

Farid in this case have been made in the pending Divorce Action and the plaintiff may not

avoid litigating the divorce action issues by commencement of this action. Liebert v. TlAA-

CREF 34 AD3d 756 (2d Dept. 2006). Matter of Feustal v. Rosenbaum, 24 AD3d 549 (2d

Dept. 2005). Except for the claims under the DCL, resolution of the issues in this action wil

be duplicative since the value and extent of Farid' s assets and business interests wil be

determined in the Divorce Action. Accordingly, truly duplicative claims should be

dismissed in accord with this decision and order.

Plaintiff alleges that Farid transferred funds to his brothers Farzan and Kian and that

the transfers should be declared void as to the plaintiff, and that Farid is a "silent" partner

with some or all of the individual defendants in the Business Organizations. Plaintiff does

not allege that she has an ownership interest in any of the Business Organizations , but claims

that by virte of New York' s law of equitable distribution - which directs the Court in the

divorce action to determine the rights of the paries to the mariage in all marital propert,

whether it be owned or titled separately or jointly DRL 9236B(5)(a) - she has an interest in

the value of Farid' s interest in the Business Organizations. Until the Court in the Divorce

Action makes such a determination, plaintiffs rights asserted in this action are speculative

because she does not yet know what she wil receive, or if her rights are capable of being

satisfied out of marital propert that is within the reach of the Court in the Divorce Action.

To the extent that plaintiff seeks to establish causes of action against the defendants other

than Fard, Farzan and Kian, those claims must fail as plaintiff has not stated any causes of

action against such other defendants. CPLR 93211(a).7. However, as indicated below, this

is without prejudice, given the stil - pending status of the Divorce Action.

The complaint alleges that beginning three years prior to the commencement of the

divorce action and up to Januar 2006, husband Farid transferred marital funds of

approximately $1 400 000.00, into a ban account titled in the names of Farid' s brothers.

The transfers which are specified allegedly came in par from joint ban accounts with

plaintiff and from Farid' s business entities.

In the First Cause of Action, plaintiff claims that the transferred fuds constitute

marital assets subject to equitable distribution. As noted above, this claim is undoubtedly

within the scope of the divorce action and requires no furter comment. It is therefore

dismissed.

In the Second Cause of Action, plaintiff claims that Farid is the beneficial owner of

the defendant Business Organizations by reason of having used marital fuds to obtain such

interests, and that plaintiff is entitled to equitable distribution as to the value of Farid'

facto ownership interests. That plaintiff also alleges knowledge on the part ofthe individual

defendants of the likelihood that marital assets were used for investment purposes, does not

alter the proposition that this cause of action is redundant to the issues in the Divorce Action.

Significantly, in the Second Cause of Action, plaintiff seeks only to reach Farid' s share of

the Business Organizations which she states are marital assets; although plaintiff mislabels

the Business Organizations as marital propert, it is actually the value ofF arid' s interests in

the Business Organizations that are subject to distribution, not the businesses. The Second

Cause of action is dismissed.

The Third Cause of Action seeks an injunction, pending the determination of the

action against all of the defendants prohibiting them from transferring encumbering or

otherwise taking any action with respect to any assets. This cause of action in effect seeks

a preliminar injunction and assumes plaintiff s success in the within action without meeting

the standards necessar for a preliminar injunction. The plaintiff is referred to CPLR

Aricle 63 for the requisites to obtain a preliminar injunction and the well settled body of

law which governs the entitlement to a preliminar injunction Coby Group, LLC

Hasenfld, 46 AD3d 593 (2d Dept. 2007). Plaintiff has not set forth any facts that would

justify consideration of a preliminar injunction against all of the defendants prohibiting

them from taking any action with respect to their assets. However, the Third Cause of action

does allege the elements of a claim for an injunction pursuant to DCL 9279, Rights of

Creditors whose claims have not matured. Tratalgar Power, Inc., v. Aetna Life Ins. Co. , 131

Supp. 2d 341 (N.D. NY 2001). Hence, this cause of action shall remain as to Farid, Farzan

and Kian but is dismissed as to all other defendants with leave to replead against them, as set

forth below.

The Fourth Cause of Action seeks to impose a constrctive trst on diverted assets.

Plaintiff seeks a constrctive trst upon all monies and assets that were transferred by Farid

and that plaintiff receive and obtain her equitable share of transferred monies and assets.

The elements of a constrctive trst are a confidential or fiduciar relationship, a

promise, a transfer by the claimant in reliance thereon and unjust enrichment. A constructive

trust may also be imposed whenever necessary to satisfy the demands of just ice. Cinquemani

v. Lazio, 37 AD3d 882 (3d Dept. 2007); Squiciarino v. Squiciarino 35 AD3d 844 (2d Dept.

2006). Plaintiff has failed to plead sufficient facts to satisfy the elements of a constructive

trst. There is no confidential or fiduciary relationship between plaintiff and any defendant

other than Farid, there is no pleading of a promise, no allegation that plaintiff transferred

anything to any defendant, and evidence of unjust enrichment is lacking. See Dutcher

Shaver 40 AD3d 1192 (3 Dept. 2007) and Parr v. Ronkonkoma Realty Venture L L.P. , 32

AD3d 384 (2d Dept. 2006); cflwanow v. Iwanow 39 AD3d 476 (2d Dept. 2007). To the

contrar, the essence ofthe claim is that Farid is an undisclosed investor and the value of his

investment should be considered for purposes of equitable distribution. Resolution of this

proposition can be made in the Divorce Action. The Fourth Cause of action therefore is

dismissed.

Although not identified as such, to the extent that the complaint suggests the

applicabilty of New York' s Debtor and Creditor Law it also fails as to all defendants other

than as to Farid, Farzan and Kian and only to the extent of claims which may be deemed to

be based upon DCL 9 9276 and 279. DCL 9273 is not applicable. That section renders

conveyance fraudulent if the transferor is rendered insolvent and the conveyance is made

without a fair consideration. "Insolvency" and "fair consideration" are defined in DCL 9

271 and 272 respectively.

Section DCL 9 273 is not applicable because there is no allegation of insolvency, and

in certain respects where it is alleged that Farid received an ownership interest in a Business

Organization there is no evidence oflack of fair consideration. To the contrar, it appears

that plaintiff is alleging that Farid received an interest in the businesses as consideration.

to the $1 400 000.00 in transferred funds, plaintiff has asserted those transfers were a sham

because Farid controls the account where the monies were placed. Ifthis argument is correct

then there was no transfer.

Nor does DCL9273-a apply. It states in substance that a conveyance made without

fair consideration is fraudulent without regard to intent when the person making it is

defendant in an action for money damages or a judgment in such action has been docketed

against him if after final judgment the defendant fails to satisfy the judgment.

This section requires a conveyance, lack offair consideration and non-payment of the

judgment obtained, none of which have been pleaded. Under these circumstances , it is not

necessary to determine whether for the puroses of this section an action for divorce is

considered an action for money damages, because the statute is not otherwise applicable.

Federal Deposit Ins. Corp. v. Porco 75 NY2d 840, 842 (1990).

DCL 9274 , Conveyances by persons in business, and DCL 9275 , Conveyances by a

person about to incur debts are by their terms not applicable.

DCL 9276 states in substance that a conveyance made with actual intent to hinder

delay or defraud either present or future creditors is fraudulent as to both present and futue

creditors. Although the reach of this section is broader in that it applies to future creditors

and does not require elements of insolvency, fair consideration or a judgment the

compensation is that the bar of pleading and proof is set higher, in that actual intent to

defraud must be shown by clear and convincing evidence. Marine Midland Bank v. Murkoff

120 AD2d 122 (2d Dept. 1986)

It has been held that there is no fraudulent conveyance claim as to non-transferees

who merely assist in transferring assets but are not the recipients thereof. Cahen Vorburger

v. Vorburger 41 AD3d 281 (1st Dept. 2007). Here, except for the alleged transfers of the

400.00.00 to the account titled to Farid' s brothers Farzan and Kian, the Court cannot

discern from the pleading which of the defendants are charged with receiving the allegedly

transferred assets.

As to these three defendants, the allegations against them are sufficient to plead a

claim pursuant to DCL 9276, conveyance with intent to defraud, based upon the transfer of

the $1,400 000.00 from Farid to their account. To this extent the Third Cause of action must

be sustained.

Furer, direct evidence of fraudulent intent may be proved circumstantially and cours

wil consider certain "badges of fraud" which are circumstances that accompany fraudulent

transfers so commonly that their presence gives rise to an inference of intent. Such badges

include close relationship of the parties to the transaction, inadequacy of consideration, the

transferor s knowledge of the claims or claims that are likely to arise, including inabilty to

pay and retention of control by the transferor. Dempster v. Overview Equities, Inc., 4 AD3d

495 (2d Dept. 2004). Facts supporting all of these elements have been alleged by plaintiff

Sullvan v. Kodsi 373 F.Supp. 2d 302 306 (S. Y. 2008); Ostashko v. Ostashko F. Supp.

2d 2002 WL 32068357 (E.D.

);

cf In re Sharp Intern. Corp. 403 F. 3d 43 56 (2d Cir.

2005).

The allegations against the Business Organizations and the defendants other than

Farid, Farzan and Kian are lacking in the minimal requirements which have been found

necessar to support a claim under any section of the DCL. Shisgal v. Brown 21 AD3d 845

(1 st Dept. 2005); Galgano v. Ortiz 287 AD2d 688 (2d Dept. 2001).

As to the alleged transfer of$I 400 000. , to Farid' s brothers which pre- and post-

dated the commencement of the Divorce Action, the Court finds that the complaint is

sufficient to state a claim under DCL 276 as the "badges of fraud" are pled or are sustained

under the evidence presented. The transfers were for no consideration, they were in temporal

proximity to the commencement ofthe Divorce Action, involve members ofFarid' s family,

and otherwise permit an inference of a fraudulent intent to secrete funds from the plaintiffs

knowledge or reach. Nonas v. Romantini 271 AD2d 292 (1 st Dept. 2000); Marine Midland

Bank v. Zurich Insurance Company, 263 AD2d 382 (1 st Dept. 1999).

As noted above, pursuant to CPLR 93211 (a)4 the presence of another action pending

does not require the Court to dismiss but also permits it to make such order as justice

requires. In this case, plaintiff has not yet established her entitlement to equitable

distribution, which must be determined in the Divorce Action, and the issues raised here are

so inextricably intertined with the issues in that action that the interests of judicial

economy, the time of attorneys and witnesses, avoidance of duplicative and fragmented

proceedings or inconsistent results wil be better served by a joinder of what remains ofthis

action with the Divorce Action. Gutman v. Klein 26 AD3d 464 (2d Dept. 464); cfSt. John

v. St. John 201 AD2d 552 (2d Dept. 1994); Matter of Feustel v. Rosenblum , supra.

In sum, all causes of action except the Third are dismissed and as to the Third it is

dismissed as to all defendants except F arid, F arzan and Kian. As to defendants F arid, F arzan

and Kian, the Cour finds that plaintiff has stated causes of action under DCL 9276

(including DCL ~ 276-a) and 279. The action is joined with the Divorce Action pending

between plaintiff and Farid, Index Number 201960- , before Justice Robert A. Ross and

is transferred to his Part.

Therefore, it is

ORDERED that these actions are joined for trial and it is further

ORDERED, that all parties shall serve upon any par so demanding copies of

disclosure documents heretofore obtained in the other action and it is further

ORDERED that all matters of trial practice, including the right to open and close

are reserved to the Justice presiding at the joint trial, and it is further

ORDERED that all papers shall reflect the joint status of these actions, and it is

fuher,

ORDERED upon completion of discovery, the paries shall file separate Notes of

Issue and Certificates of Readiness, as to each action and its further

ORDERED that each par shall be entitled to enter separate Judgments and Bil of

Costs and Disbursements, in each action respectively, if costs are allowed, and it is furter

ORDERED that Plaintiff as to both actions is directed to serve and fie a Nassau

County Request for Judicial Intervention in said actions duly noting their related nature and

the designation of Justice Ross as the LA.S. Justice in both actions, and it is further

ORDERED, that the Movant shall serve within 30 days, a copy of this Order upon

all paries to both actions receipt of a copy ofthis order from any source and upon the Clerk

of the Supreme Court of Nassau County, and upon receipt ofthis Order, the Nassau County

Clerk is directed to join the files.

In view of the foregoing the request by defendants for sanctions is denied.

The dismissals herein are without prejudice to a repleading the dismissed claims

against both the dismissed and retained paries if it is later determined that any of defendants

or their business interests are beyond the reach ofthe jurisdiction of this case or the Divorce

Action, and plaintiff obtains an award not capable of being satisfied without resort to the

same. See Andux v. Woodbury Auto Park, Inc. 30 AD3d 362 (2d Dept. 2006); Raik

Cindent Developers, L.L. c., 282 AD2d 513 (2d Dept. 2001).

This shall constitute the Decision and Order of this Court.

ENTER

DATED: March 14 2008

HON. DANIEL PALMIERIActing Supreme Court Justice

FtEC

TO: Potruch & Daab , LLCAttorneys for Plaintiff666 Old Country RoadGarden City, NY 11530

1 8 1UOQ

I'

" ,

AHU I ,. UNl '(COUN1V I.&t;t\ Ofi"Ct;

Abrams, F ensterman, F ensterman, Eisman

Greenberg, Formato & Einiger, LLPBy: Steven J. Eisman, Esq.

Attorneys for all Defendants except Farid AdhamiMortimer s Clothier, Inc. , and Adco Textile, Inc.1111 Marcus Avenue, Ste. 107Lake Success, NY 11042

The Barbara Law Firm, LLPBy: Dominic A. Barbara, Esq.

Attorneys for Defendant Farid Adhami1100 Stewart AvenueGarden City, NY 11530

Hon. Robert Ross , JSCMatrimonial Center400 County Seat DriveMineola, NY 11501