Opinion
Index No. E2023001856
07-18-2023
MOSHE ROTHMAN; AEVRI UPSTATE MANAGER LLC; AEVRI UPSTATE INVESTORS LLC; APEX PROPERTY HOLDINGS LLC; 400 WEST AVENUE LLC; 441 SOUTH SALINA LLC; AEVRI SALINA MANAGER LLC; AEVRI SALINA INVESTORS LLC; AEVRISALINE MEADOWS SPE LLC; AEVRI SALINE MEADOWS LLC; AEVRI ARLINGTON MANAGER LLC; AEVRI ARLINGTON INVESTORS LLC; AEVRI ARLINGTON GREEN SPE LLC; AEVRI ARLINGTON GREEN LLC; AEVRI LONG LAKE MANAGER LLC; AEVRI LONG LAKE HOLDINGS LLC; AEVRI LONG LAKE SPE LLC; AEVRI LONG LAKE LLC, Plaintiffs, v. CHAIM PURETZ, also known as ELI PURETZ, Defendant.
Joseph Sanderson, Esq. Nathaniel J. Kritzer, Esq. Steptoe & Johnson LLP Attorneys for Plaintiffs Avery S. Mehlman, Esq. Joshua M. Herman, Esq. Herrick, Feinstein LLP Attorneys for Defendant
Unpublished Opinion
Special Term May 23, 2023
Joseph Sanderson, Esq. Nathaniel J. Kritzer, Esq. Steptoe & Johnson LLP Attorneys for Plaintiffs
Avery S. Mehlman, Esq. Joshua M. Herman, Esq. Herrick, Feinstein LLP Attorneys for Defendant
DECISION AND ORDER
Odorisi, J.
This case arises from allegations of fraudulent and erratic behavior by Defendant, a former business associate of Plaintiffs'. Pending before the Court are several applications:
Plaintiffs' Order to Show Cause for the following relief: (1) prohibiting Chaim Puretz ("Puretz"), and any person acting in concert with Puretz or at his direction or under his control, until entry of judgment in this action or further order of the Court, from acting or holding himself out as authorized to act on behalf of the Plaintiff entities or from holding himself out as having any continuing role at the Plaintiff entities; (2) prohibiting Puretz, and any person acting in concert with Puretz or at his direction or under his control, until entry of judgment in this action or further order of the Court, from purporting to sell, assign, transfer, dispose of, encumber, convey, or otherwise interfere with interests in the Plaintiff entities without the written consent of Moshe Rothman ("Rothman") as the ultimate Managing Member of each such entity; (3) prohibiting Puretz, and any person acting in concert with Puretz or at his direction or under his control, until entry of judgment in this action or further order of the Court, from using or from purporting to sell, assign, transfer, dispose of, encumber, convey, or otherwise interfere with any property of Plaintiffs, including but not limited to any usernames, passwords, or access credentials for Plaintiffs' bank accounts or for tax e-filing systems; (4) prohibiting Puretz, and any person acting in concert with Puretz or at his direction or under his control, until entry of judgment in this action or further order of the Court, from using or purporting to use any purported LLC Agreement for any entity Plaintiff that has been forged; (5) directing Puretz to provide Plaintiffs with the contact information for each person to whom he has held himself as authorized to act on behalf of the Plaintiff entities; (6) directing Puretz to provide Plaintiffs with the contact information for each person to whom he has purported to sell or assign interests in any of the Plaintiff entities; (7) authorizing expedited discovery regarding the subject-matter of this application;
Plaintiffs' Order to Show Cause for the following relief: (1) prohibiting Puretz, and any person acting in concert with Puretz or at his direction or under his control, until entry of judgment in this action or further order of the Court, from taking any action to harass, intimidate, threaten, or in any way seek to influence witnesses and prospective witnesses who have given, or may give, testimony in this action; (2) prohibiting Puretz, and any person acting in concert with Puretz or at his direction or under his control, until entry of judgment in this action or further order of the Court, from communicating, orally or by written or any other means, with Nathan Rose or Yehoshua Bressler about the present action, without prior permission from their attorneys; (3) prohibiting Puretz, and any person acting in concert with Puretz or at his direction or under his control, until entry of judgment in this action or further order of the Court, from entering, loitering within 100 yards of, or driving slowly past any residence of any witness or who has given testimony in this action; (4) prohibiting Puretz, and any person acting in concert with Puretz or at his direction or under his control, until entry of judgment in this action or further order of the Court, from unlawfully interfering with the business of any witness or prospective witness in this action, including but not limited making unlawful threats or inducements toward any customer, investor, or business partner of Nathan Rose or Yehoshua Bressler; (5) awarding Plaintiffs their fees and costs on this application and imposing such other sanction as the Court may deem appropriate under Part 130 of the Rules of the Chief Administrator; and
Plaintiffs Order to Show Cause for the following relief: (1) pursuant to Judiciary Law § 753 (A) (3), holding Defendant in civil contempt for disobedience to a lawful mandate of this Court, namely the Temporary Restraining Order signed by the Court and entered by the County Clerk on February 28, 2023, ordering that "pending hearing and determination of this application and the entry of an Order thereon, or until further Order of this Court, Puretz and any person acting in concert with Puretz or at his direction or under his control, are temporarily ENJOINED and RESTRAINED from: (a) taking any action to harass, intimidate, threaten, or in any way seek to influence witnesses and prospective witnesses who have given, or may give, testimony in this action," by harassing witnesses through threatening messages sent directly by him
and through others; (2) pursuant to Judiciary Law § 753 (A) (3), holding Defendant in civil contempt for disobedience to a lawful mandate of this Court, namely the Temporary Restraining Order signed ordering that "pending hearing and determination of this application and the entry of an Order thereon, or until further Order of this Court, Puretz and any person acting in concert with Puretz or at his direction or under his control, are temporarily ENJOINED and RESTRAINED from: communicating, orally or by written or any other means, with Nathan Rose or Yehoshua Bressler about the present action, without prior permission from their attorneys," by communicating with Nathan Rose without prior permission from his attorney; (3) pursuant to Judiciary Law § 753 (A) (4), holding Defendant in civil contempt for willfully preventing or disabling from attending or testifying a witness and/or for any other unlawful interference with the proceedings therein, harassing witnesses through threatening messages sent directly by him and through others, and by communicating those threats to other potential witnesses as well in order to deterthem from coming forward; (4) pursuant to Judiciary Law § 773, imposing a fine against Defendant in the amount of two hundred and fifty dollars plus Plaintiffs' costs and expenses; (5) pursuant to the Rules of the Chief Administrative Judge (22 NYCRR) § 130-1.1, imposing sanctions on Defendant; (6) pursuant to this Court's inherent power and common law authority to maintain the integrity of its proceedings and/or CPLR 3126, rendering a judgment by default against Defendant as a result of irreparable prejudice to Plaintiffs' ability to secure the testimony of third-party witnesses, or, in the alternative, deeming admitted all matters to which third-party witness testimony is relevant, or issuing adverse-inference sanctions against Defendant at trial.
For the reasons set forth herein, Motion #1 is GRANTED, Motion #2 is GRANTED IN PART and DENIED IN PART, and the motion for contempt will be determined by a hearing after limited discovery as set forth herein.
LAWSUIT FACTS
Plaintiffs are commercial real estate investment entities and their manager, real estate investor Moshe Rothman ("Rothman"). Rothman worked with Defendant, Chaim Puretz ("Puretz") on a series of investments in 2021 and 2022.
In this action, Plaintiffs allege that Defendant, a former business associate, has engaged in fraudulent and illegal actions, including purporting to sell interests in certain Plaintiff entities that he does not own and has no power to sell without consent, submitting unauthorized, false, and fictitious tax returns on behalf of at least one Plaintiff entity, seeking to defraud lender and others by impersonating Rothman using an email bearing his name, and misappropriating funds belonging to various Plaintiff entities.
PROCEDURAL HISTORY
This action was commenced on February 23, 2023.
LEGAL ANALYSIS
CPLR 6301 gives a Court the authority to grant preliminary injunctive relief:
A preliminary injunction may be granted in any action where it appears that the Defendant threatens or is about to do, or is doing or procuring of suffering to be done, an act in violation of the Plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the Defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff....
In order for a party to obtain a preliminary injunction, the party must establish that (1) there is a likelihood of ultimate success on the merits, (2) that there is a prospect of irreparable harm if the relief is not granted, and (3) that the balance of equities favor the moving party. See Doe v Axelrod, 73 N.Y.2d 748 (1988). A preliminary injunction is a drastic remedy and should be issued cautiously. See Uniformed Firefighters Assn, of Greater New York v City of New York, 79 N.Y.2d 236 (1992). This relief "should be awarded sparingly, and only where the party seeking it has met its burden of providing both the clear right to the ultimate relief sought and the urgent necessity of preventing irreparable harm." City of Buffalo v Mangan, 49 A.D.2d 697, 697 (4th Dept 1975).
When evaluating a motion for a preliminary injunction a court must be mindful that preliminary injunctions are intended to "preserve the status quo pending a determination on the merits," not to determine the ultimate rights of the parties. Young v Crosby, 87 A.D.3d 1308 (4th Dept 2011). "A motion for a preliminary injunction is addressed to the sound discretion of the trial court, and the decision of the trial court on such a motion will not be disturbed on appeal, unless there is a showing of an abuse of discretion." Marcone APW, LLC v Servall Co., 85 A.D.3d 1693, 1695 (4th Dept 2011).
As noted supra, the first prong when considering a preliminary injunction is whether a likelihood of ultimate success has been established. "A preliminary injunction is a provisional remedy. Its function is not to determine the ultimate rights of the parties, but to maintain the status quo until there can be a full hearing on the merits." Gambar Enters, v Kelly Servs., 69 A.D.2d 297 (4th Dept 1979). "[A] likelihood of ultimate success must not be equated with a final determination on the merits." Times Square Books, Inc, v City of Rochester, 223 A.D.2d 270, 278 (4th Dept 1996). '"To sustain its burden of demonstrating a likelihood of success on the merits, the movant must demonstrate a clear right to relief which is plain from the disputed facts.'" Wegman v Altieri, 55 Misc.3d 1216(A), *5 (Sup Ct Monroe Co 2015), quoting Related Prop., Inc, v Town Bd. of TownA/illage of Harrison, 22 A.D.3d 587, 590 (2nd Dept 2005).
A court must also assess whether there will be irreparable injury if the provisional relief is withheld. See Destiny USA Holdings, LLC v Citigroup Global Markets Realty Corp., 69 A.D.3d 212, 220 (4th Dept 2009). "'Economic loss, which is compensable by money damages, does not constitute irreparable harm.'" Mangovski v DiMarco, 175 A.D.3d 947, 949 (4th Dept 2019) (citation omitted). "[I]rreparable injury generally cannot be established where any damages sustained are calculable, because the plaintiff in such a case would have an adequate remedy in the form of monetary damages." Destiny USA, 69 A.D.3d at 220. "Where the plaintiffs can be fully compensated by a monetary award, an injunction will not issue because no irreparable harm will be sustained in the absence of such relief." Mar v Liquid Mgt. Partners, LLC, 62 A.D.3d 762, 763 (2nd Dept 2009).
Finally, a court will evaluate the third and final prong, the balancing of the equities. For this prong to be satisfied, '"[i]t must be shown that the irreparable injury to be sustained ... is more burdensome . . . than the harm caused to [the nonmoving party] through imposition of the injunction.'" Destiny USA, 69 A.D.3d at 223 (citation omitted).
Motion #1
The first motion filed by Plaintiffs seeks a preliminary injunction enjoining and restraining Defendant from engaging in impersonation, forgery, and the sale of false interests.
Defendant opposes and makes a series of contentions in the Affidavit of Chaim Puretz:
Defendant also has moved to dismiss. The motion to dismiss is currently returnable on October 17, 2023. The Chaim Puretz Affidavit referenced herein was submitted in support of the motion to dismiss. The assertions made in that Affidavit, however, are referenced by Puretz in the memorandum of law submitted in opposition to the applications for preliminary injunctions.
4. The assignment/sales of membership interests in Aevri Upstate Investors LLC... have been rescinded and canceled. Consequently, I do not purport to have sold or assigned any membership interests in Aevri Upstate Investors LLC.
5. I am not a member of Aevri Upstate Investors LLC, Aevrie Long Lake Investors LLC, Aevri Salina Investors LLC, or Aevri Arlington Investors LLC. I have no intention to sell, transfer or assign interests in any of the Plaintiff entities. . .
7. Although I deny that I committed the acts of forgery alleged. . . I agree that the forged operating agreement and forged assignment. .. are inauthentic and of no legal effect, and I do not intend to use them for any purpose. I am not presently using, nor do I intend to use, any LLC agreements of the Plaintiff entities.
8. I agree with Mr. Rothman that I am not authorized to act on behalf of or use the property of any of the Plaintiff entities, and I am not currently purporting to act on behalf of or use the property of any of the Plaintiff entities.
9. I am not currently using, nor do I intend to use, the mo@aevri.com email account.
10. I agree to provide Plaintiffs, upon request, with any property or access credentials belonging to Plaintiffs,
including any credentials used for bank accounts, IRS or NYS DTF e-filing credentials, usernames, and passwords. I also intend to alert the IRS and NYS DTF that the tax returns . . . were filed in error and should be disregarded.Affidavit of Chaim Puretz, ¶¶4-5, 7-10.
Puretz does not deny- and implicitly and/or overtly admits- to most allegations made in the Complaint.
Puretz's Memorandum of Law submitted in opposition states: "The vast majority of the Complaint in this action is built on past conduct by Mr. Puretz that has since been disavowed and caused no damages to the Plaintiffs. Mr. Puretz agrees that he does not have authority to act on behalf of Plaintiffs." Memorandum of Law, at 1.
"[T]he court's power to grant injunctive relief survives discontinuance of the illegal conduct." United States v W. T. Grant Co., 345 U.S. 629, 633 (1953). The purpose of an injunction is to prevent future violations, Swift &Co. v. United States, 1928, 276 U.S. 311, 326,48 S.Ct. 311,314,72 L.Ed. 587. An injunction 'can be utilized even without a showing of past wrongs.'" Id. However, "the moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive." Id. A determination in such a circumstance is discretionary, and the Court's "discretion is necessarily broad and a strong showing of abuse must be made to reverse it. To be considered are the bona tides of the expressed intent to comply, the effectiveness of the discontinuance and, in some cases, the character of the past violations." Id.
"The voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed." Knox v Serv. Emps. Int'l Union, Loc. 1000, 567 U.S. 298, 307 (2012). See also, People ex rel. Spitzer v ELRAC, Inc., 192 Misc.2d 78, 84 (Sup Ct NY Co 2002); State by Lefkowitz v Pers., 75 Misc.2d 252, 253 (Sup Ct NY Co 1973). "A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party." Knox, 567 U.S. at 307 (citations and internal quotations omitted). "'[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.'" Id. (citation omitted).
On the facts and circumstances presented, there is little basis for the Court to trust that Puretz will not engage again in the complained of behaviors without the safeguards provided by a preliminary injunction. As Plaintiffs note, Puretz's actions caused ongoing harm resulting from the fictitious tax filing, the uncertainty caused by his purported sale of false interests, and the reputational harms caused in general.
Plaintiffs establish their entitlement to a preliminary injunction in all respects on Motion #1. As set forth supra, there are scant, if any, conflicting factual assertions, as Puretz has acknowledged he engaged in the activities but assures Plaintiffs and the Court that he will not repeat the behaviors he admits he engaged in during the fairly recent past. The First Cause of Action seeks a declaration that Puretz has no authority to act on behalf of Plaintiffs; the Second Cause of Action seeks a declaration that the copies of the LLC Agreements in Deal Counsel's filed are authentic and that purported LLC Agreements not identical to those are forgeries; the Third Cause of Action seeks a declaration that any transfer without the consent of the Managing Member is void; the Fourth Cause of Action seeks the return of all of Plaintiffs' property in Puretz's possession; the Fifth Cause of Action alleges breach of fiduciary duty and seeks an accounting; the Sixth Cause of Action alleges conversion; the Seventh Cause of Action alleges civil theft and dealing in stolen property; and the Eighth Cause of Action seeks the imposition of a constructive trust. Injunctions are sought on the First, Second and Third Causes of Action, and a likelihood of success on the merits is easily established.
Irreparable harm that would be suffered if the nefarious activities were resumed is likewise established. First, Puretz's attempts to assert control over bank accounts and other property, such as tax filing credentials, as such actions deny Plaintiffs specific, identifiable property. See Amity Loans, Inc, v Sterling Nat. Bank &Tr. Co. of New York, 177 A.D.2d 277, 279 (1st Dept 1991). Though Puretz disavows any reversion to the previously engaged in behaviors, as noted supra, there are no assurances to that effect, thus necessitating injunctive relief. Plaintiff demonstrates irreparable injury due to the loss of goodwill associated with the actions previously taken by Puretz. See, e.q., Battenkill Veterinary Equine P.C. v Canqelosi, 1 A.D.3d 856, 859 (3rd Dept 2003) ("Loss of goodwill associated with a business, which is difficult to quantify, can constitute irreparable injury even if monetary damages, as well as injunctive relief, are requested").
Finally, the equities weigh heavily in Plaintiffs favor, as Puretz does not appear to have any legitimate rights to protect, as his decision to cease the previously engaged in behaviors reveals.
The relief sought in Motion #1 is GRANTED in its entirety.
Motion #2
Motion #2 seeks to prohibit Puretz from engaging in witness intimidation, specifically from harassing intimidating or threatening witnesses and prospective witnesses in this action, and also from communicating with Nathan Rose or Yehoshua Bressler about his action, from entering or loitering within 100 yards of (or driving slowly past) any witness' residence, and also seeks an award of fees and costs.
Puretz claims that since the TRO was entered, he has been in compliance and has not taken actions to harass, intimidate, threaten or otherwise influence witnesses or prospective witnesses. See Affidavit of Chaim Puretz, ¶17. In his Memorandum of Law, Puretz contends that he has business concerns with Nathan Rose that are "largely unrelated to this action," but acknowledges there is some overlap. Puretz contends that Rose possesses improper documents and information related to transactions set forth in the Complaint and also serves as a fiduciary to Puretz in some instances. Puretz claims that it is important for him to be permitted to communicate with Rose concerning those business transactions. While Puretz denies he tried to wrongfully influence Rose's testimony, he requests that any preliminary injunction granted clearly specify what, communications are not permitted and seeks to be able to inquire as to the status of investments with Rose and/or to discuss any and all rights and remedies available to Puretz to protect his investments. In his Affidavit, Puretz states the following with respect to Rose (set forth herein in relevant part):
6. As this lawsuit has unfolded, it is apparent to me that Mr. Rose betrayed my trust. Among other things, the affidavit that Mr. Rose executed in support of Mr. Rothman's preliminary
injunction motion falsely states that I provided "forged" documentation to him.
7. Mr. Rose also disclosed sensitive and confidential information to Mr. Rothman, which has resulted in Mr. Rothman spreading false and harmful assertions against me to my business partners and interfering with my rights in unrelated investments. Mr. Rose's betrayal has left me deeply troubled as to the safety of my other substantial investments with Mr. Rose.
8. When I attempted to meet with Mr. Rose to discuss our outstanding business together, Mr. Rose refused. This understandably made me very frustrated and angry, and I sent text messages to Mr. Rose expressing those feelings. But I have never threatened Mr. Rose to falsify his testimony or to withhold true and accurate evidence.
9. On March 23, 2023, while I was in my counsel's office exporting files from my phone to preserve for discovery, I inadvertently emailed to Mr. Rose a copy of our WhatsApp message history. This export was formatted as a .txt file containing our chat messages and separate files containing all of the images and other files we had sent to one another. Most of these files have nothing to do with this action, much less Mr. Rose's children.Affidavit of Chaim Puretz, ¶¶6-9.
Puretz's affidavit does not deny that after the Complaint in this action was filed, he sent threatening messages to witnesses, drove to and loitered outside the place of employment of at least one witness, and contacted witness' business partners and threatened to demand money. Plaintiff notes that Puretz can communicate with Rose through counsel, or directly with the approval of Rose's counsel.
Messages sent by Puretz include: "U think Hashem will have mercy on ur cancer?" "I'll pray every day u die from it" "I'll have taiynos on u forever and may Hashem hurt u and ur family like you've hurt me." Affidavit of Nathan Rose, Ex. 3-6.
A party must articulate a "specific present objective harm or a threat of specific future harm" to establish a cognizable claim based on the chilling of first amendment rights. Laird v Tatum, 408 U.S. 1,13-14 (1972). "Preventing harassment or intimidation of witnesses is crucial to our system of justice, so that no party may 'influence a proceeding and obtain an outcome therein through extra-judicial means.'" Theroux v Resnicow, 2019 WL 3526262, at *2 (Sup Ct NY Co July 29, 2019), citing Kalyanaram v New York Inst, of Tech., 2007 WL 4226677, at *3 (Sup Ct NY Coy Oct. 15, 2007).
Here, Plaintiff submits sufficient evidence that Rose was harassed. While the Court agrees that Puretz should be able to aggressively enforce his rights with respect to the business dealings he has with Rose (and has an interest in doing so), for the time being, those overtures must be made through counsel. Providing a buffer of counsel in this situation protects all sides from further issues, threats and accusations.
The relief sought with respect to witness intimidation on Motion #2 is GRANTED. The request for an award of fees is DENIED.
Contempt
In the last pending motion for this return date, Plaintiff seeks to hold Puretz in civil contempt for disobedience to a lawful court mandate: the TRO signed and entered on February 28, 2023. That TRO ordered that pending the hearing: Puretz and those acting in concert with him or at his direction or under his control, were enjoined from harassing, intimidating, threatening or otherwise seeking to influence witnesses who have given or may give testimony this action, and also that Puretz and those acting in concert with him or at his direction and control were enjoined from communication with Nathan Rose or Tehoshua Bressler about this action without prior permission from their attorneys.
A court's power to punish for a civil contempt is codified in the Judiciary Law. Judiciary Law §753(3) provides authority to find a party in contempt where the court finds "disobedience to a lawful mandate of the court." As the Court of Appeals has explained:
Civil contempt has as its aim the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right.. .
In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed ... Moreover, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party... Finally, prejudice to the right of a party to the litigation must be demonstrated ....McCormick v. Axelrod, 59 N.Y.2d 574, 582-583 (1983) (citations omitted), amended 60 N.Y.2d 652.
The party asking for a civil contempt adjudication bears the burden of proof on the above elements by clear and convincing proof. See El-Dehdan v. El-Dehdan, 26 N.Y.3d 19, 29 (2015). Civil contempt is punishable by fine and/or imprisonment. See Judiciary Law §§753-754.
The Court granted Plaintiff a TRO on February 28, 2023, enjoining Puretz, or any person acting in concert with him, at his direction or under his control, from engaging in various actions allegedly undertaken to intimidate witnesses and/or prospective witnesses. Plaintiffs contend that Puretz continued to threaten and coerce witnesses through his father and other intermediaries after the Court signed the TRO. It is alleged that on March 20, 2023, Rose received a voice message on WhatsApp from Aron Puretz, Defendant's father. Rose contends that the message is a copy of one sent to a business partner of Rose, and was sent to Rose to show Rose the consequences to his reputation and business suffered as a result of testifying against Defendant. Aron Puretz said: "My son was taken advantage of and I am not gonna let it happen. Okay. I'm gonna make pressure. I am, I am gonna make pressure on all these [unintelligible]." Aron further stated: "I will make pressure on you to rectify that issue"; "I'm not scared of you. I'm gonna tell you the way it is. You wash your hands. If you try to, if you try to make it right, I could give you a million dollars and I'll pay for all." Affidavit of Nathan Rose, Ex. 1.
Aron Puretz's father sent screenshots from Puretz's (Plaintiffs) WhatsApp account that purported to show a conversation between Puretz and Rose, stating: "You're going to pay dearly for this. Much more than a million.". Id. at Ex. 3. Aron Puretz continued and forwarded Rose another message in which Puretz said "The doc they are claiming that I signed Rothman name on just as an FYI ROSE signed it with Rothman Autograph. See screenshot." Id. at Ex. 4. Aron Puretz then sent a screenshot of Rose's first affidavit in this action with a paragraph circled, and said "Perjury in the fullest extent." Id.
Rose contends he has also received communications from other community members telling him that Puretz plans to ruin Rose's name, to have him prosecuted for perjury, and to set up a "fake FBI sting" against Rose. Id. at ¶ 17.
Also, it is alleged that on March 23, 2023. Puretz personally emailed Rose and, among other things, the email attached photographs of Rose's children. Id. at Ex. 6. Rose considered this a threat of harm as revenge for Rose's testimony, and Rose contends he is afraid for himself and for his family. Id. at ¶ 20.
Puretz opposes this motion and acknowledges that Rose betrayed his trust, disclosed sensitive and confidential information to Rothman, and has rendered Puretz "troubled as to the safety" of his investments with Rose. Affidavit of Chaim Puretz, ¶7. Puretz also states that on March 23, 2023, while he was in his counsel's office exporting files from his phone to preserve for discovery, he inadvertently emailed Rose a copy of their WhatsApp message history. The export was formatted as a .txt file and allegedly contained their chat messages and separate files containing all of the images and other files we had sent to one another, including presumably the photos of Rose's children. Id. at ¶9. Puretz claims he did not know the email was sent to Rose until the motion was filed seeking sanctions against him.
As to his father, Aron Puretz, Chaim Puretz avers that before the email was sent to Rose, Puretz was discussing the litigation with Aron and sent Aron screenshots of documents and communications showing that it was Rose or someone working for him- not Puretz-who had affixed Rothman's signature to an operating agreement of plaintiff Aevri Upstate Investors LLC. Id. at ¶11. Puretz states that he sent these screenshots solely for Aron's benefit, and not with the intent that Aron would share them with anyone else. Id. at ¶12. Puretz states that he subsequently learned that Aron Puretz, without consulting him, sent voice messages to Eliyahu Mirlis (a business associate of Rose's) and Rose himself. Id. at ¶14. Puretz contends he did not direct his father to contact them and was not involved in the transmissions. Id. at¶15.
It is alleged that Aron Puretz has longstanding business relationships with both men.
Puretz's affidavit raises factual issues that require a hearing. See Data Track Account Services, Inc, v Lee, 291 A.D.2d 287 (4th Dept 2002). "[A] hearing is not necessary when there is no 'factual dispute as to [the party's] conduct unresolvable from the papers on the motion.'" Quantum Heating Servs. Inc, v Austern, 100 A.D.2d 843, 844 (2nd Dept 1984) (citation omitted). "[D]ue process requires that, in contempt proceedings, the contemnor be afforded an opportunity to be heard at a meaningful time and in a meaningful manner" Delijani v Delijani, 73 A.D.3d 972, 973 (2nd Dept 2010) (internal quotation marks omitted). "A hearing is required only if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense." El-Dehdan v El-Dehdan, 114 A.D.3d 4, 17 (2nd Dept 2013), afFd, 26 N.Y.3d 19 (2015).
Here, Puretz's affidavit raises a factual issue as to whether the order of the Court was disobeyed. A limited amount of discovery will be allowed to ascertain any written communications that may have occurred between Puretz and Aron Puretz during the relevant time frame. This discovery must be completed by September 15, 2023. A hearing will then be scheduled on the contempt issue.
ORDER
After due consideration of the parties' submissions and for the reasons set forth in the Court's written Decision, supra,
The application for a preliminary injunction on Motion #1 is GRANTED;
The application for a preliminary injunction on Motion #2 is GRANTED IN PART and DENIED IN PART;
The parties are directed to exchange discovery with respect to written communications between Puretz and Aron Puretz during the relevant time frame by September 15, 2023; and
Thereafter, a hearing will be scheduled to determine the application for a finding of contempt.