Supreme Court, Suffolk County, November 10, 2021

Welby, Brady & Greenblatt, LLP, White Plains, for plaintiff.

Glenn Agre Bergman & Fuentes LLP, New York City, for Igor Bron and others, defendants.

It is ordered that this motion by the plaintiff for an order of attachment is denied.

The gravamen of the complaint is that the defendant Igor Bron, aided and abetted by the defendants Rita Bron, Richard Sajiun, and Sajiun Electric, Inc., diverted corporate assets and opportunities from E. Electrical Contracting, LLC (EEC), which is owned by the plaintiff (51%) and Mr. Bron (49%). The plaintiff's chief claims against the Brons, Richard Sajiun and Sajiun Electric, Inc., are for fraud and aiding and abetting fraud, for breach of fiduciary duty and aiding and abetting breach of fiduciary duty, and for unjust enrichment. The plaintiff moves for an order of attachment.

To obtain an order of attachment, the moving party must demonstrate through affidavit or other written evidence (1) the existence of a cause of action for a money judgment, (2) a probability of success on the merits, (3) the existence of one or more grounds enumerated in CPLR 6201, and (4) that the amount demanded from the defendant exceeds all counterclaims known to the plaintiff (see CPLR 6212 [a]; Ford Motor Credit Co. v Hickey Ford Sales, 62 NY2d 291, 301 [1984]). Because attachment is a harsh remedy, CPLR 6201 is strictly construed in favor of those against whom it may be employed (651 Bay St., LLC v Discenza, 189 AD3d 952, 953 [2020]; Sylmark Holdings Ltd. v Silicone Zone Intl. Ltd., 5 Misc 3d 285, 300-301 [2004]).

The plaintiff seeks an order of attachment against the defendant Richard Sajiun on the ground that he is a nondomiciliary residing in Florida. Pursuant to CPLR 6201 (1), a court may order an attachment when the defendant is a nondomiciliary residing without the state. This provision serves two independent purposes: (1) obtaining jurisdiction over a nonresident and (2) providing adequate security for a potential judgment against a nonresident when there is an identifiable risk that{**73 Misc 3d at 862} the defendant will not be able to satisfy any judgment (Sylmark Holdings Ltd. at 301). CPLR 6201 (1) is not available if the defendant is either a domiciliary or resident of New York (Rayo v Vitale, 38 Misc 3d 1211[A], 2012 NY Slip Op 52428[U], *9 [2012]). Thus, a nondomiciliary may contest his amenability to attachment by arguing that he maintains some sort of residence within New York (id., citing Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C6201:1).

Richard Sajiun has submitted an affidavit in which he avers that he resides in Suffolk County and works in New York City. The record reflects that he was served in Hampton Bays, New York, and that he has appeared in the action. Thus, jurisdiction has been obtained over Mr. Sajiun, and the first purpose of attachment has been satisfied (see Sylmark Holdings Ltd.). With respect to the second purpose, the plaintiff contends that the Sajiun residence was sold below market value and that Mr. Sajiun removed the proceeds of the sale from New York to Florida. The plaintiff's contention that the Sajiun residence was sold below market value is based on a Zillow listing (not an affidavit from a real-estate appraiser), which reveals that the property sold for $2,300,000 in June 2021, only 3% below its estimated value of $2,371,800. Moreover, the plaintiff's contention that Mr. Sajiun took the proceeds of the sale to Florida is based upon information and belief. That the affidavits in support of an attachment contain allegations raising a suspicion of an intent to defraud is not enough (651 Bay St., LLC). The mere removal, assignment, or other disposition of property is not grounds for attachment (id.). Accordingly, the plaintiff has failed to demonstrate a real identifiable risk that Richard Sajiun will be unable to satisfy any judgment obtained by her (see Sylmark Holdings Ltd.).

The plaintiff also seeks an order of attachment against the defendants Igor Bron, Rita Bron, Richard Sajiun, and Sajiun Electric, Inc., pursuant to CPLR 6201 (3). Under this provision, the plaintiff must demonstrate: (1) that the defendants have assigned, disposed of, encumbered or secreted their property or removed it from the state or are about to do any such acts and (2) that the defendants have acted or will act with the intent to defraud their creditors or to frustrate the enforcement of a judgment that may be rendered in the plaintiff's favor (id. at [*2]301).

The plaintiff attempts to demonstrate the defendants' fraudulent intent by relying on the same allegations as underlie the{**73 Misc 3d at 863} complaint. Proof that a defendant committed the underlying unlawful acts is not, by itself, sufficient to establish a ground for attachment (NV Petrus SA v LPG Trading Corp., 2016 WL 11469718, *5, 2016 US Dist LEXIS 200496, *12-15 [ED NY, Aug. 22, 2016, No. 14-CV-3138 (NGG) (PK), Kuo, J.]), nor is the transfer of the Bron residence to a family trust in 2017, long before this action was commenced. As previously noted, the mere removal, assignment, or other disposition of property is not grounds for attachment (651 Bay St., LLC), and there are reasons to transfer property to a family trust other than to defraud creditors or to frustrate the enforcement of a judgment. Moreover, the plaintiff's allegations of fraudulent concealment of assets are based on information and belief. As previously noted, allegations raising a suspicion of an intent to defraud are not enough (id.). Vague and conclusory allegations without evidentiary facts are insufficient for prejudgment attachment (see Sylmark Holdings Ltd. at 302). Accordingly, the court finds that the plaintiff has failed to establish that one or more grounds for attachment provided in CPLR 6201 exist.

The plaintiff has also failed to establish a probability of success on the merits of her claims, which is necessary to obtain an order of attachment. First, the plaintiff's allegations plead a wrong to EEC for which the plaintiff may sue derivatively, but not individually (see Abrams v Donati, 66 NY2d 951, 953 [1985]). Second, the fraud cause of action alleges Mr. Bron entered into certain agreements with the plaintiff without any intention of honoring them. A mere misrepresentation of an intent to perform under a contract is insufficient to sustain a cause of action to recover damages for fraud (Gorman v Fowkes, 97 AD3d 726, 727 [2012]). Third, the breach-of-fiduciary-duty cause of action alleges that Mr. Bron breached his fiduciary duty to the plaintiff. However, as the managing member of EEC, it was the plaintiff who owed a fiduciary duty to Mr. Bron (see Kalikow v Shalik, 43 Misc 3d 817, 823-826 [2014]). Fourth, the existence of the EEC operating and amended operating agreements defeats the unjust-enrichment cause of action (Saunders v AOL Time Warner, Inc., 18 AD3d 216, 217 [2005]). Finally, in the absence of viable fraud and breach-of-fiduciary-duty causes of action, the aiding-and-abetting causes of action fail. Accordingly, the motion is denied.