FILED: NEW YORK COUNTY CLERK 06/03/2016 03:35 PM
`FILED: NEW YORK COUNTY CLERK 06m2016 03:35 PM
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`NYSCEF DOC. NO. 44
`NYSCEF DOC. NO. 44
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`159900/2015
`INDEX NO. 159900/2015
`INDEX NO~
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`RnCnIVnD VYSCEF:
`06/06/2016
`RECEIVED NYSCEF: 06/06/2016
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`SUPREME COURT OF THE STATE OF NEW YORK
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`COUNTY OF NEW YORK
`———————————————————————————————————————————————————————————————X
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`315 HUDSON LLC,
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`Plaintiff,
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`-against-
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`Index No. 159900/2015
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`AFFIRMATION OF
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`BURTON R. ROSS IN
`SUPPORT OF
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`FIVE BELLS, INC. F/K/A AMSCO SCHOOL
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`PLAINTIFF’S ORDER
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`PUBLICATIONS, INC.,
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`TO SHOW CAUSE
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`Defendant.
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`BURTON R. ROSS, an attorney duly admitted to practice in the Courts of the State of
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`New York, hereby affirrns under penalties of perjury as follows:
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`1.
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`I am a partner in the law firm of Jaffe, Ross & Light LLP (“JRL”), attorneys for
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`the Plaintiff 315 Hudson LLC (“Plaintiff,” or “Landlord”).
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`I am fully familiar with the facts
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`stated herein.
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`2.
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`This affirmation is submitted in support of Plaintiffs motion by Order to Show
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`Cause for an order pursuant to CPLR § 5229 (a) restraining defendant Five Bells, Inc. f/k/a
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`Amsco School Publications, Inc. (“Defendant”) (see Exhibit A) from making or suffering any
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`sale, assignment, transfer or interference with any property or assets in which Defendant has an
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`interest or may be entitled to receive at any time, until the pending judgment based on this
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`Court’s Decision and Order dated and entered on May 24, 2016 (NYSCEF Doc. No. 38) is
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`satisfied (see Exhibit C); (b) ordering Defendant to appear and attend before a notary public at
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`the offices of Plaintiffs counsel, Jaffe, Ross & Light LLP, 880 Third Avenue, New York, New
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`York 10022, for the taking of a deposition under oath upon oral questions on all matters relevant
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`4815-9210-1426, V. 2
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`FILED: NEW YORK COUNTY CLERK 06m2016 03:35 PM
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`NYSCEF DOC. NO. 44
`NYSCEF DOC. NO. 44
`
`159900/2015
`INDEX NO. 159900/2015
`INDEX NO~
`
`
`
`
`
`RnCnIVnD VYSCEF:
`06/06/2016
`RECEIVED NYSCEF: 06/06/2016
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`———————————————————————————————————————————————————————————————X
`
`315 HUDSON LLC,
`
`Plaintiff,
`
`-against-
`
`Index No. 159900/2015
`
`AFFIRMATION OF
`
`BURTON R. ROSS IN
`SUPPORT OF
`
`FIVE BELLS, INC. F/K/A AMSCO SCHOOL
`
`PLAINTIFF’S ORDER
`
`PUBLICATIONS, INC.,
`
`TO SHOW CAUSE
`
`Defendant.
`————————————————————————————————————————————————————————————————X
`
`BURTON R. ROSS, an attorney duly admitted to practice in the Courts of the State of
`
`New York, hereby affirrns under penalties of perjury as follows:
`
`1.
`
`I am a partner in the law firm of Jaffe, Ross & Light LLP (“JRL”), attorneys for
`
`the Plaintiff 315 Hudson LLC (“Plaintiff,” or “Landlord”).
`
`I am fully familiar with the facts
`
`stated herein.
`
`2.
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`This affirmation is submitted in support of Plaintiffs motion by Order to Show
`
`Cause for an order pursuant to CPLR § 5229 (a) restraining defendant Five Bells, Inc. f/k/a
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`Amsco School Publications, Inc. (“Defendant”) (see Exhibit A) from making or suffering any
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`sale, assignment, transfer or interference with any property or assets in which Defendant has an
`
`interest or may be entitled to receive at any time, until the pending judgment based on this
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`Court’s Decision and Order dated and entered on May 24, 2016 (NYSCEF Doc. No. 38) is
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`satisfied (see Exhibit C); (b) ordering Defendant to appear and attend before a notary public at
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`the offices of Plaintiffs counsel, Jaffe, Ross & Light LLP, 880 Third Avenue, New York, New
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`York 10022, for the taking of a deposition under oath upon oral questions on all matters relevant
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`4815-9210-1426, V. 2
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`to the satisfaction of said pending judgment; and (c) ordering such other and further relief as this
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`Court may deem just and proper.
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`3.
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`Upon information and belief, Defendant, which was formerly known as Amsco
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`School Publications, Inc., was in the business of providing educational publications and
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`materials to K-12 schools across the country and internationally. A printout of the New York
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`Department of State Division of Corporations website showing Defendant’s “Entity Information’
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`is annexed hereto as Exhibit A.
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`4.
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`Upon information and belief, Lawrence Beller is the sole shareholder of
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`Defendant.
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`5.
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`In May 2013, Defendant sold its business to Perfection Learning, an Iowa
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`company. See Exhibit B, a printout from Defendant’s website.
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`6.
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`Upon information and belief, monies continue to be paid to Defendant as a result
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`of that sale either in the form of payment on account of the sale price or as a license fee.
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`It is
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`our belief that any monies paid to Defendant are immediately disbursed to Lawrence Beller.
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`7.
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`Plaintiff commenced this action on September 28, 2015 for unpaid rent and
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`additional rent due from Defendant by Plaintiff as a result of Defendant’s default under its
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`commercial lease with Plaintiff. Defendant appeared and answered the complaint in this action,
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`and Plaintiff moved for summary judgment.
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`8.
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`By Decision and Order dated and entered on May 24, 2016 (NYSCEF Doc. No.
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`38), this Court granted Plaintiff s motion for summary judgment and awarded Plaintiff the
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`principal sum of $503,101.02 plus interest, costs and disbursements. The Court also ordered a
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`hearing before a Special Referee to determine the amount of Plaintiffs attomey’s fees. A copy
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`of Decision and Order is annexed hereto as Exhibit C.
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`9.
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`CPLR § 5229, entitled “Enforcement before judgment entered,” states as follows:
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`In any court, before a judgment is entered, upon motion of the
`party in whose favor a verdict or decision has been rendered, the
`trial judge may order examination of the adverse party and order
`him restrained with the same effect as if a restraining notice had
`been served upon him after judgment.
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`10.
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`Thus, “[t]he only statutory requirement is that the application for CPLR 5229
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`relief be made by the prevailing party.” Gallegos v. Elite Model Mgmt Corp, 1 Misc.3d 200,
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`202, 768 N.Y.S.2d 134 (Sup. Ct. N.Y. Co. 2003). “It is in the trial court’s discretion whether to
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`grant the injunctive relief in light of the purpose of the statute: to prevent an adverse party from
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`disposing of assets in order to avoid judgment.” Id.
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`11.
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`The moving party is not required to submit evidence that assets are definitively
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`being disposed of or diverted in order to win injunctive relief. Id. , at 207. Rather, as the Court
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`in Gallegos found:
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`Such evidence often may only surface on examination of the
`adverse party, ordered pursuant to CPLR 5229. A requirement of a
`showing that the adverse party has already disposed of assets runs
`counter to the purpose of CPLR 5229, which is a preventative
`measure designed to frustrate the adverse party from disposing of
`assets before such disposition takes place.
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`Id. at 207.
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`12.
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`In order to prevent Defendant from disposing of its assets so as to avoid the
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`substantial pending judgment against it, Plaintiff respectfully seeks injunctive relief pursuant to
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`CPLR § 5229.
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`13.
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`On June 6, 2016, my associate, Mark N. Antar, Esq., notified Defendant’s
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`counsel, Eve Kerzhner and Kathleen M. Kundar, of Fox Horan & Camerini LLP, by email that
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`we would be submitting this application to the Court on June 7, 2016 at 9:30 am. A copy of Mr.
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`Antar’s email is annexed hereto as Exhibit D.
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`14.
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`No prior application has been made for the relief sought herein.
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`WHEREFORE, for these reasons it is respectfiilly requested that Plaintiffs’ motion be
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`granted in its entirety.
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`Dated: New York, New York
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`June 3, 2016
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