FILED: NEW YORK COUNTY CLERK 08/27/2015 03:37 PM INDEX NO. 653564/2014 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 08/27/2015 Exhibit
FILED: NEW YORK COUNTY CLERK 01/30/2015 04:32 PM INDEX NO. 653564/2014 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/30/2015 SUPREME COURT FOR THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------------X 8430985 CANADA INC., Index No. 653564/2014 Plaintiff, -against- UNITED REALTY ADVISORS LP, ELI VERSCHLEISER, AND JACOB FRYDMAN, Defendants. ---------------------------------------------------------------------------X AFFIRMATION OF SIMCHA GITELIS, ESQ. IN OPPOSITION TO PLAINTIFF S MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT Simcha Gitelis, an attorney duly admitted to practice before the Courts of the State of New York, affirm the following under penalty of perjury, pursuant to CPLR 2106: 1. I am associated with the law firm of Gulko Schwed LLP, attorneys for Defendant Eli Verschleiser. I am personally familiar with the facts herein and submit this affidavit in opposition to Plaintiff s Motion for Summary Judgment in Lieu of a Complaint, to compel arbitration, and to stay this action pursuant to CPLR 7503(a) and 2201. 2. This action arises out of an alleged breach of a Promissory Note executed on October 25, 2013 between Plaintiff 8430985 Canada Inc. ( Lender ) and Defendant United Realty Advisors LP ( Borrower ). The Summary Judgment in Lieu of Complaint together with its Affirmation in Support and aforementioned Promissory Note is annexed hereto as Exhibit A and Exhibit B, respectively. 3. Included within Plaintiff s allegations is that Defendants Eli Verschleiser and Jacob Frydman ( Guarantors ) each entered into a Guaranty executed on October 25, 2013,
whereby each Guarantor guaranteed half the repayment of the loan to the Lender. A copy of the Guaranty is annexed hereto as Exhibit C. 4. Plaintiff alleges that the Guarantors failed to satisfy their respective obligations under the Guaranty as a result of Borrowers failure to make required payment of principal and interest under the Promissory Note. ARGUMENT 5. The instant action must be dismissed against Mr. Verschleiser because the documentary evidence expressly provides that any dispute is subject to a mandatory arbitration. 6. The Guarantee executed by the parties incorporates by reference a certain Heter Iska Contract, which was agreed by the parties to govern the terms of the Promissory Note and Guaranty. 7. Specifically, the Guaranty states that [t]he Guaranty is subject to that certain Heter Iska executed in connection with this Loan, which Heter Iska is incorporated herein by reference. A copy of the Heter Iska is annexed hereto as Exhibit D. 8. The Heter Iska, contains an express arbitration provision for resolving all disputes and artuiculates clearly that [i]n the event of any conflict between the terms of this Iska agreement and the terms of any other agreement signed by the two parties in regard to these funds, the terms of this agreement shall prevail. 9. The Heter Iska Contract also provides that [t]his agreement shall follow the guidelines of Heter Iska as explained in Sefer Bris Yehudah. It is agreed that any dispute which may arise in connection with this agreement shall be submitted before a Beis Din. (rabbinical court)
10. Under New York law, it is a fundamental principal of contract law that documents may be incorporated by reference into an executed agreement. Madison Indus., Inc. v Garden Ridge Co., 2011 N.Y. Misc. Lexis 3370 (N.Y. Sup. Ct. July 3, 2011); Jones v. Cunard S.S. Co., 238 A.D. 172, 173 (N.Y. App. Div. 2d Dep t 1933) ( a paper referred to in a written instrument and sufficiently described may be made part of the instrument as if incorporated into the body of it.) 11. Where the signed document specifically references the incorporated document, there is no bona fide issue of fact that its terms were incorporated into the agreement... and that it was to be read and its terms applied in conjunction with it. Samuel L. Hagan II, B.C. v. J.P. Morgan Chase Bank, N.A., 33 Misc. 3d 1211(A), 1211A (N.Y. Sup. Ct. 2011); see Perl v Smith Barney, 230 A.D.2d 664, 665 (N.Y. App. Div. 1st Dep't 1996). 12. Furthermore, the Court of Appeals has made clear that this State favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties... Therefore New York courts interfere as little as possible with the freedom of consenting parties to submit disputes to arbitration Smith Barney Shearson Inc. v Sacharow, 91 N.Y.2d at 49 50, 666 N.Y.S.2d 990, 689 N.E.2d 884 (1997). 13. An agreement to resolve a dispute by traditional Jewish court of law, similar to the agreement in the Heter Iska Contract herein, is considered an arbitration proceeding. Kingsbridge Center of Israel v. Turk, 98 A.D. 2d 664, 666 (1st Dept. 1983). 14. Consequently, Beis Din and not this Court should determine the merits of Defendant s defense. Diamond Waterproofing Sys,, Inc. v. 55 Liberty Owners Corp., 4 N.Y.3d 247, 252 (2005).
CONCLUSION WHEREFORE, the undersigned respectfully requests that this Court deny Plaintiff s Motion for Summary Judgment in Lieu of a Complaint and compel Plaintiff to arbitrate its claims against Defendants and stay this action in its entirety against Defendants pending such arbitration. Dated: New York, New York January 30, 2015 Respectfully submitted, GULKO SCHWED LLP Simcha Gitelis, Esq. Gulko Schwed LLP 44 Wall Street, 2 nd Floor New York, New York 10005 Email: Steven@gulkoschwed.com Attorney for Eli Verschleiser
FILED: NEW YORK COUNTY CLERK 11/17/2014 01/30/2015 03:36 04:32 PM INDEX NO. 653564/2014 NYSCEF DOC. NO. 214 RECEIVED NYSCEF: 11/17/2014 01/30/2015 SUPREME COURT FOR THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X : 8430985 CANADA INC., : Index No. : Plaintiff, : -against- : NOTICE OF MOTION FOR : SUMMARY JUDGMENT : IN LIEU OF COMPLAINT UNITED REALTY ADVISORS LP, : ELI VERSCHLEISER, AND JACOB FRYDMAN, : : Defendants. : -----------------------------------------------------------------------X PLEASE TAKE NOTICE that upon the affidavit of William Grzywacz, sworn to on November 14, 2014, and the exhibits annexed thereto, Plaintiff s supporting memorandum of law, and all other proceedings conducted herein, Plaintiff will move this Court, at the courthouse located at 60 Centre Street, Room 130, the Motion Part, at 9:30 a.m., on January 12, 2015 or as soon thereafter as counsel may be heard, for an Order pursuant to CPLR 3213, granting summary judgment in lieu of complaint in favor of Plaintiff, and against (a) Defendant United Realty Advisors LP in the principal amount of $2,000,000, together with interest at the rate of 12% per annum compounded monthly, in the amount of $253,650.06 through October 25, 2014, and interest thereafter at a rate of 18% per annum until the entirety of the debt is satisfied, (b) Defendants Eli Verschleiser and Jacob Frydman, as Guarantors, each in the principal amount of $1,000,000, together with interest in the amount of $126,825.03 through October 25, 2014, and one-half the interest thereafter at a rate of 18% per annum until the entirety of the debt is satisfied, plus Plaintiff s costs and expenses, including attorneys fees incurred in connection with enforcing Payment under the Promissory Note and Guaranties, on the ground that this #5412877 v1 \022565 \0002
action is based upon an instrument for the payment of money only, and that there are no defenses thereto, and for such other and further relief as the Court may deem just and proper. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR Section 3213, all answering papers must be served upon the undersigned at least ten (10) days prior to the return date of this motion. Dated: New York, New York November 17, 2014 Respectfully submitted, THE RYAN LAW GROUP, LLP By: /s/ Andrew J. Ryan Andrew J. Ryan 14 E. 4th St., Suite 406 New York, New York 10012 (212) 944-7300 Attorneys for Plaintiff TO: United Realty Advisors LP, Eli Verschleiser, and Jacob Frydman 60 Broad Street, 34 th Floor, New York New York 10004 44 Wall Street, New York, New York 10005 #5412877 v1 \022565 \0002
FILED: NEW YORK COUNTY CLERK 11/17/2014 03:36 PM INDEX NO. 653564/2014 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/17/2014
FILED: NEW YORK COUNTY CLERK 11/17/2014 01/30/2015 03:36 04:32 PM INDEX NO. 653564/2014 NYSCEF DOC. NO. 415 RECEIVED NYSCEF: 11/17/2014 01/30/2015
FILED: NEW YORK COUNTY CLERK 11/17/2014 01/30/2015 03:36 04:32 PM INDEX NO. 653564/2014 NYSCEF DOC. NO. 516 RECEIVED NYSCEF: 11/17/2014 01/30/2015
FILED: NEW YORK COUNTY CLERK 01/30/2015 04:32 PM INDEX NO. 653564/2014 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/30/2015