SCAN SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU. PRESENT: HON. IRAB. WARSHAWSKY, Justice.

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1 SCAN SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. IRAB. WARSHAWSKY, Justice. TRIAL/IAS PART 14 ONE LIBERTY PROPERTIES, INC., on its own behalf and its subsidiares and affiiates, including but not limited to, OLP BROOKLYN PAVILION LLC, OLP-MTC HOLDINGS, LLC, OLP MOVIES LLC and OLP MONROE PAVILION, LLC -against - Plaintiffs INDEX NO. : /2005 MOTION DATE: 07/25/2006 MOTION SEQUENCE: 004 and 005 PRITCHARD SQUARE, LLC, PRITCHARD SQUARE CINEMA, LLC, BRITANNIA MANAGEMENT SERVICES, L.P., RLIES CINEMA, LLC, MONROE PAVILION, LLC NORMAN ADIE, SCREEN ARTS CORP. JEFFREY FISHMAN, KASEY GITTLEMAN MELISSA FISHMAN, RONALD PARR and THE PARR ORGANIZATION, INC. Defendants.

2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRITCHARD SQUARE, LLC and PRITCHARD SQUARE CINEMA, LLC Plaintiffs -against- INDEX NO. : /2005 ONE LIBERTY PROPERTIES, INC. GOULD INESTORS, L.P., OLP BROOKLYN PAVILION, LLC, BRITANNIA MANAGEMENT SERVICES, INC., OLP-MTC HOLDINGS, LLC OLP MOVIES, LLC, MAJESTIC MAAGEMENT PROPERTY CORP. and JEFFREY FISHMAN Defendants. The following papers read on this motion: Notice of Motion, Affirmation & Exhibit Anexed... Memorandum of Law of Defendants Britania Management Services, Inc. and Jeffrey Fishman in Support... 2 Notice of Motion, Affirmation & Exhbit Anexed... Memorandum of Law of Defendant Melissa Fishman in Support of Her Motion to Dismiss the Amended Complaint as Against Her... 4 Affrmation in Opposition to Motions to Dismiss Action 1 of Steven R. Schlesinger, Esq. and Exhibits Anexed Plaintiffs' Memorandum of Law in Opposition to Defendants ' Jeffrey Fishman and Britania Management and Melissa Fishman s Motion to Dismiss the Amended Complaint in Action 1... ;... 6 Reply Affirmation ofira Brad Matetsky, Esq. in Furher Support & Exhibit Anexed... 7 Reply Memorandum of Law of Defendants Britania Management Services, Inc. and Jeffrey Fishman in Furher Support Reply Memorandum oflaw of Defendant Melissa Fishman in Further Support... Motion by defendants Britana Management Services, Inc. ("Britania ) and Jeffrey Fishman for judgment pursuant to CPLR 3211(a)(7), 3016(b), and 3013, dismissing 13 of the

3 causes of action plead against them in the amended complaint, and the motion by defendant Melissa Fishman for judgment pursuant to the same provisions of the CPLR, dismissing all 12 causes of action alleged against her in the amended complaint, are both granted in par and denied in par. This action arises out of a number of commercial real estate transactions. Plaintiff One Libert Properties Inc. ("One Libert") is a real estate investment company in the business of acquiring, owning and managing properties (amended complaint, par. 6). The remainder of the plaintiffs are subsidiaries or affiliates of One Libert (amended complaint, par. 11). Plaintiffs allege that they purchased properties and entered into unprofitable contracts as a result of bribes paid by defendants Pritchard Square LLC and Pritchard Square Cinema LLC (collectively Pritchard Square ) and Norman Adie ("Adie ), the managing member of Pritchard Square. The bribes were allegedly paid to defendant Jeffrey Fishman, the former president and CEO of One Libert (amended complaint, pars. 53, 62, 63, 65, 67). When the bribes were discovered in mid- 2005, Mr. Fishman resigned and plaintiffs commenced this action. According to plaintiffs, Pritchard Square and defendants Monroe Pavilion LLC("Monroe ) and Screen Ars Corp. whose assets are intermingled (amended complaint par ). Screen ) are inter-related limited liabilty companies Defendant Ronald Par is the president of defendant The Par Organization, Inc., an entity that allegedly, overstated the value of constrction costs for the Monroe Theatre, a propert purchased by One Libert (see amended complaint, par. 71). It is alleged that by bribes and kickbacks Par induced Mr. Fishman to cause plaintiffs to enter into the construction contract with The Par Organization. (amended complaint 71). Britania is a corporation that is the alleged "alter ego" of Jeffrey Fishman (amended complaint, par. 14), and defendant Relies Cinema LLC is alleged to be a company operated by Jeffrey Fishman (amended complaint, par. 99). Defendant Screen Arts Corp. is alleged to be Adie s company (amended complaint, par 63). Defendant Melissa Fishman is the wife of defendant Jeffrey Fishman, and defendant Kasey Gittleman is the wife of defendant Norman Adie. The complaint alleges 22 causes of action, of which 13 are addressed in the dismissal

4 motion by Britania and Jeffrey Fishman, and 12 are addressed in the dismissal motion by defendant Melissa Fishman. The standard for relief on a motion pursuant to CPLR 3211(a)(7) is that the cour must accept as true the facts alleged in the complaint and accord the pleader the benefit of every possible favorable inference in determinig whether the complaint states any legally cognizable cause of action. See Arnav Indus. Inc. Retirement Trust Brown, Raysman Milstein, Felder Steiner, LLP 96 NY2d (2001); Schenkman New York College of Health Professionals 29 AD3d 671 (2 Dept. 2006). Fraud shall be plead with the detail required by CPLR 3016(b); the complaint must state the claim of fraud with suffcient specificity to inform the defendant of the circumstances constituting the alleged fraud. Marshall Vilar 303 AD2d 466 (2 Dept. 2003). Dismissal pursuant to CPLR 3103 is waranted where the allegations of a pleading are not sufficiently paricularized to give notice of the transactions and occurences intended to be proved, and do not satisfy the material elements of the cause of action. Trans- Continental Credit Collection Corp. v Foti 270 AD2d 250 (2 Dept. 2000). FRAUD The first cause of action alleges a claim for common law fraud against all defendants. The fraud is described as a scheme of bribes and kickbacks designed to induce Jeffrey Fishman to agree on behalf of plaintiffs to enter into economically detrimental contracts. Plaintiffs allege the requisite elements of fraud, namely, the bribes and kickbacks, that defendants knew were unlawfl and were intended to cause damage to plaintiffs, the intent to deceive plaintiffs, reliance by plaintiffs on the statements and representations and the suppression of truthful information by defendants in entering into the various contracts, and damages suffered by plaintiffs (amended complaint, pars. 76, 80-85). The details of eight alleged bribes and kickbacks are set forth in the amended complaint at paragraph 76. As to the first seven allegations, plaintiffs provide dates, amounts and other identifying information. As to the eighth allegation, plaintiffs simply state that defendants "materially overstated construction costs from Januar - December 2004 in the form (sic) payments to Par in the amount of no fewer than $ , for construction work worth significantly less." This last

5 allegation is a conclusory and general allegation (see also amended complaint, pars ), and fails to apprise defendants of the circumstances surrounding the alleged overstated construction costs and the transactions and occurences intended to be proved. Based on the foregoing, dismissal of the cause of action for fraud is granted only as to the allegation of overpriced construction work, and denied as to the remainder of the cause of action against Britania and Jeffey Fishman, which is severed and continued. With respect to Ms. Fishman, the allegation that she "knowingly and wilfully accepted payments in conjunction with Defendants' scheme and (is) the unauthorized beneficiar(y) of Defendants' nefarious conduct" is not adequate to allege a cause of action for fraud, and accordingly dismissal of the first cause of action against Melissa Fishman is granted. RICO CLAIMS The elements that must be plead to sustain a civil claim under the Racketeer Influenced and Corrpt Organizations Act ("RICO")(18 USC 1961 et seq.) are: (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity. Podraza Carriero 212 AD2d (4 Dept. 1995), Iv app dsmd 86 NY2d 885. Racketeering activity includes wire and mail fraud. 18 USC 1961(1); Podrazza at 335. The requirement of a pattern has been constred to mean either an open-ended pattern of racketeering activity (past criminal conduct coupled with a theat of futue criminal conduct), or a closed-ended pattern (past criminal conduct over a substantial period of time) (First Capital Asset Management Inc. Satinwood, Inc. 385 F3d (2 Cir. 2004)). A closed-ended pattern of racketeering activity must take place over more than two years, see First Capital Asset Management Inc. at 181, as Congress was concerned in RICO with long-term criminal conduct. HJlnc. Northwestern Bell Telephone Co. 492 US (1989). The eight alleged bribes and kickbacks identified in paragraph 99 of the amended complaint constitute the alleged "racketeering activity." The question is whether this alleged conduct suffices to establish a pattern. The first seven alleged bribes and kickbacks take place between August, 2002 through July They include: (1) payment of $ in August, 2002; (2) payment of$ in December, 2002; (3) a wire transfer in the amount of$ on Februar ; (4) a wire

6 transfer of $ in Februar, 2003; (5)payment of$ on May 8, 2003; (6) payment of $ on May ; and a (7) wire transfer in July, 2003 of$ These acts fail to allege a closed-ended pattern of racketeering activity, because the time period involved is not of sufficient duration, that is, all of the conduct took place withn one year. The eighth alleged predicate act for RICO liabilty is the overbiling for construction costs, which took place "from Januar-December 2004." Again, this conclusory statement lacks the requisite paricularity to allege a predicate act of fraud. See First Asset Management Inc Consequently the alleged overbiling canot extend the time period that includes the other seven allegations, and therefore, there is no closed-ended pattern of racketeering. According to plaintiffs the scheme of bribery and kickbacks ended when it was discovered in Plaintiffs claim that the scheme would have continued but for the discovery. In fact, once the alleged overbillng is no longer a factor, the scheme ended in July No evidence has been presented that would permit the inference that the scheme would continue. Under these circumstances, there is no open-ended pattern of racketeering. Based on the foregoing, the second cause of action in the amended complaint alleging substantive RICO violations must be dismissed in the absence of a pattern of racketeering activity. In addition, the claim of conspiracy to commit substantive RICO violations, as set forth in the third cause of action, must also be dismissed. First Capital Asset Management Inc. 385 F3d at 182. MONIES HAD AND RECEIVED Melissa Fishman seeks dismissal of the fourh cause of action for monies had and received on the grounds that this cause of action is supported solely by vague and general conclusory allegations. A cause of action for money had and received is an obligation which the law creates in absence of an agreement, when one par possesses money that in equity and good conscience he or she ought not to retain and that belongs to another. Parsa State 64 NY2d 143, 148 (1984). The remedy is available if the money has been obtained through the medium of oppression, imposition, extortion or deceit. Id. Ms. Fishman is correct that the allegations found in the fourh cause of action herein are too conclusory to state a cause of action against her for monies had and received. For this reason, the fourh cause of action against Melissa Fishman

7 must be dismissed. AIDING AND ABETTING BREACHES OF FIDUCIARY DUTY A claim for aiding and abetting a breach of fiduciar duty requires: (1) a breach by a fiduciar of obligations to another; (2) a claim that the defendant knowingly induced or paricipated in the breach; and (3) that the plaintiff suffers damages as a result of the breach. Kaufman Cohen 307 AD2d 113 (1st Dept. 2003). In the sixth cause of action plaintiffs allege that all of the defendants, except Jeffrey Fishman, aided and abetted and paricipated in the breaches of fiduciar duties committed by Mr. Fishman, by encouraging him to accept bribes and kickbacks or by giving him bribes and kickbacks, in exchange for deals with plaintiffs. These allegations are sufficient, at this junctue, to state a cause of action against Britania and Melissa Fishman, for aiding and abetting a breach of fiduciar duty by Jeffrey Fishman. Accordingly, the motions to dismiss the sixth cause of action must be denied. General Business Law GENERAL BUSINESS LAW is directed at wrongs against the consuming public; private contract disputes, unque to the paries, do not fall within the ambit of the statute. Oswego Laborers ' Local 214 Pension Fund Marine Midland Bank, NA 85 NY2d 20, (1995); see also Gaidon Guardian Life Ins. Co of America 94 NY2d 330, 344 (1999). The only deceptive acts alleged concern the paries herein, not the consuming public. Plaintiffs' attempt to include the consuming public, by noting its status as a public company is too tenuous to suffce. Under these circumstances, plaintiffs have no claim for violation of General Business Law 349, and therefore the seventh cause of action against Jeffrey Fishman, Britannia and Melissa Fishman is dismissed. TORTIOUS INTERFERENCE WITH CONTRACT The elements of a claim of tortious interference with contract are: (1) the existence of a contract between plaintiff and a third par; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third pary to breach the contract without justification; (4 )actual breach; and (5) damages to the plaintiff. Lama Holding Co. Smith Barney Inc. NY2d (1996). In the eleventh cause of action for tortious interference with contract, plaintiffs state that

8 defendants intentionally interfered with the sales contracts and leases for various properties by repeatedly accepting and diverting payments, unbeknownst to Plaintiffs, in the form of bribes and kickbacks" (amended complaint, par. 147). However nowhere do plaintiffs allege that there was any breach of the sales contracts or leases. In the absence of a breach of contract, plaintiffs do not and canot allege a claim for tortious interference with contract. Krinos Foods, Inc. Vintage Food Corp. 30 AD3d 332 Water Works Realty Corp. (1st Dept. 2006); Cytryn, 263 AD2d 540 (2 Dept. 1999). For this reason, the eleventh cause of action against Jeffrey Fishman, Britania, and Melissa Fishman must be dismissed. Although plaintiffs expressly seek leave to replead this cause of action, they do not state what contract has been breached, only that plaintiffs would not have entered into the subject contracts had they known of the alleged bribes and kickbacks. This does not sufce, and leave to replead is denied. INTENTIONAL TORTS A cause of action for intentional tort may be constred as a cause of action for prima facie tort. Dailey Tofel, Berelson, Saxl Partners, P. 273 AD2d (2 Dept. 2000). There is no recovery in prima facie tort unless the defendant's sole motivation is disinterested malevolence " namely, malice unixed with any other motive and exclusively directed to the injury and damage of the plaintiff. Burns Jackson Miler Summit Spitzer Lindner 59 NY2d 314, 333 (1983); see generally Simaee Levi 22 AD3d 559, 563 (2 Dept. 2005). Nowhere in the thirteenth and foureenth causes of action in the amended complaint where plaintiffs purort to allege claims for intentional torts, do plaintiffs allege disinterested malevolence. Consequently the requests by defendants Jeffey Fishman, Britania, and Melissa Fishman for dismissal of the thirteenth and foureenth causes of action are granted. TORTIOUS INTERFERENCE WITH ECONOMIC ADVANTAGE A claim for tortious interference with economic advantage requires inter alia allegations that the defendants intentionally, and through wrongful acts, prevented a third par from extending a contractual relationship with the plaintiff. Joan Hansen Co., Inc. Everlast World' s Boxing Headquarters Corp. 296 AD2d 103, 111(1st Dept. 2002); Susskind IPCO Hosp. Supply Corp. 49 AD2d 915 (2 Dept. 1975). The absence of specific allegations of such a contractual relationship, that would have been entered into, but for defendants' alleged conduct

9 is fatal to this cause of action. Vigoda DCA Productions Plus Inc. 293 AD2d 265, (l Dept. 2002). In its memorandum of law it is argued that defendants intentionally interfered with the sales contracts for the Monroe premises, Pavilon Theatre and the LA propert. However instead of alleging that defendants' conduct resulted in the prevention of a contractual relationship, plaintiffs allege that defendants' conduct resulted in the consumation of a contractual relationship with various defendants. Furher, plaintiffs allege no other potential contractual relationship that did not come to fruition because of defendants ' conduct. In short the facts of this case do not fit within the parameters of a cause of action for tortious interference with economic advantage. Accordingly the motions to dismiss the fifteenth cause of action must be granted, and leave to replead is denied. UNAUTHORIZED DIVERSION OF FUNDS In the sixteenth cause of action plaintiffs allege that Jeffrey Fishman diverted funds received from defendants that belonged to plaintiffs for his own personal use. Plaintiffs fuher allege that the unlawflly diverted fuds "were received by, inter alia Britania and Relies Cinema." Both Britania and Relies Cinema are corporations operated by Jeffrey Fishman. As authority for this cause of action for "unauthorized diversion of fuds" plaintiffs rely on Serio Rhulen 24 AD3d 1092 (3 Dept, 2005). In Serio Rhulen the Cour held that a cause of action for wrongful diversion of funds was stated against four individuals who were not parties to any contract with the plaintiff. These individuals were fiduciaries of the plaintiff. The Court rested its finding on its conclusion that breach of a legal duty independent from the contract is implicated. Serio at This rationale is not applicable here, because Britaia and Relies Cinema were not fiduciaries of the plaintiffs and this claim is duplicative of the cause of action for breach of fiduciar duty, with respect to defendant Jeffrey Fishman, and the cause of action for aiding and abetting the breach of fiduciary duty, as to the other defendants. Based on the foregoing the sixteenth cause of action against defendants Jeffrey Fishman, Britania, and Melissa Fishman, must be dismissed. ACCOUNTING A fiduciar relationship between paries is necessar in order to obtain an accounting.

10 Top-All Varieties, Inc. RAJ Development Co. 173 AD2d 604 (2 Dept. 1991). Defendants Britania and Melissa Fishman seek dismissal of the seventeenth cause of action for an accounting on the grounds that they are not fiduciares of the plaintiff. Plaintiffs allege that Britania is the "alter ego" of Jeffrey Fishman. At this pleading stage of this action, the seventeenth cause of action states a cause of action against Britania for an accounting, as the "alter ego" of plaintiffs' fiduciar, Jeffrey Fishman. In contrast, there is no basis for requiring an accounting from Melissa Fishman. Under these circumstances, dismissal of the seventeenth cause of action is denied as to defendant Britania, and granted as to defendant Melissa Fishman. PENAL LAW VIOLATIONS There is no private right of action for a violation of Penal Law ~180., commercial bribery in the first degree. Wint ABN Amro Mortgage Group, Inc. 19 AD3d 588, 589 (2 Dept. 2005). This prohibition, logically, extends to Penal Law ~ 180., commercial bribery in the second degree, and Penal Law ~ , commercial bribe receiving in the first degree. Although neither plaintiffs nor defendants address the allegation of violation of Penal Law ~190., scheme to defraud in the first degree, review of the New York cases under this provision of the penal law suggests the same restriction. Consequently the eighteenth cause of action, alleging violations of Penal Law ~~180., 180., 180., and 190., must be dismissed. UNJUST ENRICHMENT Defendant Melissa Fishman seeks dismissal of the twenty-first cause of action for unjust enrichment. A claim of unjust enrichment requires (1) the other pary was enriched, (2) at the pleader s expense, and (3) that it is against equity and good conscience to permit the enriched par to retain what is sought to be recovered. Cruz McAneney, 31 AD3d 54 (2 Dept. 2006). Unjust enrichment does not require the performance of any wrongful act by the pary unjustly enriched; innocent parties may frequently be unjustly enriched. Id. At this early stage of the proceedings herein, the Cour finds that plaintiffs have stated a cause of action against Melissa Fishman for unjust enrichment, and dismissal of the twenty-first cause of action is denied. PERMANENT INJUCTION 10-

11 In the twenty-second cause of action against defendants Jeffrey Fishman, Britania Relies Cinema and Monroe Pavilion, plaintiffs seek a permanent injunction enjoining these defendants from transferrng or disposing of propert they allegedly wrongfully obtained in accordance with their scheme to defraud plaintiffs. The Court notes that plaintiffs do not identify the propert at issue, nor state why plaintiffs do not have an adequate remedy at law. Republic Nat. Title Ins. Co. Cardinal Abstract Corp. 14 AD3d 678, 680 (2 Dept. 2005). Under these circumstances, dismissal of the twenty-second cause of action must be granted. Based on the foregoing, the motions to dismiss by defendants Jeffrey Fishman, Britania and Melissa Fishman, are granted in par and denied in par, and it is ORDERED that the second, third, seventh, eleventh, thirteenth, foureenth, fifteenth sixteenth, eighteenth and twenty-second causes of action, and so much of the first cause of action as claims overpriced construction work, are dismissed against defendants Jeffrey Fishman and Britana; and it is fuher ORDERED that the first, second, third, fourh, seventh, eleventh, thirteenth, foureenth fifteenth, sixteenth, seventeenth and eighteenth causes of action are dismissed against Melissa Fishman. Old Dated: September 14, 2006 /J j)tl LUUb Cou,'j 0'. '-r",\1 'i 'I,, V l- " r L( 'C OffICE ',. r\!' 11-