Opinion
DBDCV195015584
12-31-2019
Michele SOKOLOW v. David LESNICK et al.
UNPUBLISHED OPINION
OPINION
Brazzel-Massaro, J.
The plaintiff, Michele Sokolow (Sokolow) filed a proposed writ, summons, and complaint on September 12, 2019. Sokolow named as the defendant David Lesnick (Lesnick) who is also known as David Joseph Vasquez, David E. Joseph Lesnick, David Lakomy, DJ Lakomy, David Lakony, and David A. Joseph Vasquez, in addition to DLBH, LLC that was formed by Lesnick with him as the sole member. The complaint contains six counts as follows: 1) Breach of oral contract; 2) fraudulent conveyance; 3) statutory theft; 4) conversion; 5) fraudulent misrepresentation; and 6) unjust enrichment. The plaintiff submitted an application for a prejudgment remedy at the same time and a hearing was scheduled for November 25, 2019. Service was made by abode service to Lesnick and DLBH, LLC.
The plaintiff filed an affidavit in support of the prejudgment remedy but also testified at the hearing on November 25, 2019. The defendants did not appear for the hearing.
DISCUSSION
"The purpose of a prejudgment remedy of attachment is security for the satisfaction of the plaintiff’s judgment, should he obtain one ... It is primarily designed to forestall any dissipation of assets by the defendant and to bring [those assets] into the custody of the law to be held as security for the satisfaction of such judgment as the plaintiff may recover ... The adjudication made by the court on [an] application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiff’s cause of action. It is independent of and collateral thereto." (Internal quotation marks omitted.) Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC., 101 Conn.App. 638, 646-47, 922 A.2d 1131 (2007).
"[P]rejudgment remedy proceedings are not involved with the adjudication of the merits of the action brought by the plaintiff or with the progress or result of that adjudication. They are only concerned with whether and to what extent the plaintiff is entitled to have property of the defendant held in the custody of the law pending the adjudication of the merits of that action ... This limited evidentiary proceeding contrasts sharply with, for example, the detailed and substantive arguments and conclusions that must be addressed in a motion to strike." (Citation omitted; internal quotation marks omitted.) Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC, supra, 101 Conn.App. 646.
" ‘Prejudgment remedy’ means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of his property prior to final judgment but shall not include a temporary restraining order." General Statutes § 52-278a(d). Prejudgment remedies are statutory devices designed to bring the defendant’s assets into custody as security for the satisfaction of the judgment the plaintiff may recover. Pursuant to § 52-278d(a), the prejudgment remedy hearing is limited to a determination of: "(1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter ..." "The purpose of a prejudgment remedy of attachment is security for the satisfaction of the plaintiff’s judgment, should he obtain one ... It is primarily designed to forestall any dissipation of assets by the defendant and to bring [those assets] into the custody of the law to be held as security for the satisfaction of such judgment as the plaintiff may recover ... The adjudication made by the court on [an] application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiff’s cause of action. It is independent of and collateral thereto." (Internal quotation marks omitted.) Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC., 101 Conn.App. 638, 646-47, 922 A.2d 1131 (2007).
The role of the court in considering an award of a prejudgment remedy is well established. "A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims, set-offs will be rendered in the matter in favor of the plaintiff ..." Kendall v. Amster, 108 Conn.App. 319, 948 A.2d 1041 (2008).
"[A] hearing in probable cause is not intended to be a full scale trial on the merits of the [moving party’s] claim. The [moving party] does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim ... The court’s role in such a hearing is to determine probable success by weighing probabilities ... the legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment under the circumstances, in entertaining it ... Probable Cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false." Spilke v. Spilke, 116 Conn.App. 590, 593 n.6, 976 A.2d 69 (2009). "Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 112 Conn.App. 315, 319, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.2d 113 (2009); see 36 DeForest Avenue, LLC v. Creadore, 99 Conn.App. 690, 698, 915 A.2d 916, cert. denied, 282 Conn. 905, 920 A.2d 311 (2007) (stating that the burden of proof at a probable cause hearing is a low one). "At a probable cause hearing on a prejudgment remedy, a trial court may properly consider all evidence presented, including testimony of witnesses, documentary evidence, and affidavits." Fleet Bank of Connecticut v. Dowling, 28 Conn.App. 221, 610 A.2d 707, cert. granted on other grounds, 223 Conn. 921, 614 A.2d 821 (1992).
With this standard in mind and for purposes of this application for a prejudgment remedy, this court determines that the plaintiff has satisfied the requirements for the issuance of a prejudgment remedy.
The testimony and evidence of the parties as provided to the court provides a sufficient basis to determine that the plaintiff, if believed could demonstrate that the defendant is liable for one or more of the causes of action alleged in the complaint. The plaintiff testified that in 2015 she met the defendant by the name of David Lesnick through a friend. She did not know of his criminal background, that the life’s experiences he relayed were false or that in fact was not receiving a $14 million inheritance or aware of the number of alias’ he utilized. The plaintiff became a widow and thereafter the defendant befriended her.
In the summer of 2017, the defendant wanted to purchase a home but told the plaintiff the funds were not available because of probate issues. At his request, the plaintiff provided him $400,000 to purchase the home at 9 Cotton Tail Lane, Brookfield, Connecticut. The defendant was to purchase the property in the name of the plaintiff. He purchased the property but not in the name of the plaintiff. He took title to the property at 9 Cotton Tail Lane using his name only. Thereafter, he created DLBH and transferred the property to the LLC. The plaintiff was unaware of the occurrences. When she sought the funds, they were not forthcoming and she learned the property was not in her name. She brought this action. The defendants were served notice of this action and the prejudgment hearing on October 1, 2019. Neither appeared.
The court made findings after the hearing but now supplements the findings with this written decision for the parties. Therefore, the court finds that the plaintiff has established probable cause to order a prejudgment remedy granted in the amount of $400,000.
The plaintiff can secure the Prejudgment Remedy of $400,000 from the defendants including but not limited to all real estate, bank accounts, and investment accounts or any other account to satisfy the prejudgment order.