FILED: NEW YORK COUNTY CLERK 11/30/2018 03:06 PM
`NYSCEF DOC. NO. 1269
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`INDEX NO. 600782/2007
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`RECEIVED NYSCEF: 11/30/2018
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`Plaintiff,
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`-against-
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`
`
`
`
`
`Index No. 600782/07
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`IAS Part 43
`Hon. Robert R. Reed
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`
`
`and
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`
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`Defendants,
`
`Nominal Defendant.
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`
`CASITA, L.P., derivatively on behalf of
`MAPLEWOOD EQUITY PARTNERS
`(OFFSHORE) LTD.,
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`
`
`
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`ROBERT V. GLASER,
`MAPLEWOOD HOLDINGS LLC,
`MAPLEWOOD MANAGEMENT LP and
`MAPLEWOOD PARTNERS LP,
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`
`
`MAPLEWOOD EQUITY PARTNERS
`(OFFSHORE) LTD.,
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`
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`
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`MEMORANDUM OF LAW OF PLAINTIFF CASITA, L.P. IN SUPPORT
`OF ITS MOTION, BY ORDER TO SHOW CAUSE, FOR AN ORDER PURSUANT
`TO CPLR 5229 RESTRAINING ASSET TRANSFERS BY THE DEFENDANTS AND
`DIRECTING THE DEFENDANTS TO SUBMIT TO AN EXAMINATION
`
`
`
`
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, New York 10036
`(212) 596-9000
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`Attorneys for Plaintiff Casita, L.P.
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`TABLE OF CONTENTS
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`Page
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`TABLE OF AUTHORITIES ............................................................................................................... ii
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`PRELIMINARY STATEMENT ......................................................................................................... 1
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`LEGAL STANDARD .......................................................................................................................... 3
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`ARGUMENT ....................................................................................................................................... 5
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`RELIEF UNDER CPLR 5229 IS NECESSARY TO PREVENT GLASER FROM
`FURTHER CONCEALING, TRANSFERRING, AND DISPOSING OF ASSETS
`TO AVOID JUDGMENT ............................................................................................................ 5
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`A. Glaser Is Engaged in What His Own Lawyer Has Admitted Is an “Elaborate
`Protection Scheme” to Hide Assets to Avoid Judgment ....................................................... 5
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`B. Glaser Claims That He Is in Financial Distress .................................................................... 9
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`C. The Pendency of the Defendants’ Post-Trial Motion Is No Impediment to
`Granting Casita Relief Under CPLR 5229.......................................................................... 10
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`CONCLUSION .................................................................................................................................. 12
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`TABLE OF AUTHORITIES
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`Cases
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`Page(s)
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`Berg v. Au Café, Inc.,
`2009 WL 1905143 (Sup. Ct. N.Y. Cty. June 24, 2009) ................................................. 4, 6, 10, 11
`
`Demirovic v. Ortega,
`296 F. Supp. 3d 477 (E.D.N.Y. 2017) ....................................................................................... 4, 9
`
`Gallegos v. Elite Model Management Corp.,
`1 Misc. 3d 200 (Sup. Ct. N.Y. Cty. 2003) ......................................................... 3, 4, 5, 8, 9, 10, 11
`
`Kaminsky v. Kahn,
`46 Misc. 2d 131 (Sup. Ct. N.Y. Cty. 1965) ............................................................................. 6, 11
`
`Leser v. U.S. Bank Association,
`2013 WL 867151 (E.D.N.Y. Mar. 7, 2013) ................................................................................... 8
`
`Perez v. 347 Lorimer LLC,
`2011 WL 7394419 (Sup. Ct. Kings Cty. May 3, 2011) ................................................................. 6
`
`Sequa Capital Corp. v. Nave,
`921 F. Supp. 1072 (S.D.N.Y. 1996)..................................................................................... 4, 6, 10
`
`Sovereign Bank v. Poczatek,
`2012 WL 6541852 (Sup. Ct. Nassau Cty. Sept. 4, 2012) .............................................................. 6
`
`Unex, Ltd. v. Arsygrain International Corp.,
`102 Misc. 2d 810 (Sup. Ct. N.Y. Cty. 1979) ............................................................................... 11
`
`Wall Street Associates v. Brodsky,
`257 A.D.2d 526 (1st Dep’t 1999) .................................................................................................. 8
`
`
`Statutes and Rules
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`CPLR 5222........................................................................................................................................... 4
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`CPLR 5229............................................................................................................... 1, 3, 4, 5, 9, 10, 11
`
`DCL § 273-a ........................................................................................................................................ 8
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`DCL § 276............................................................................................................................................ 8
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`
`Other Authorities
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`Robert L. Haig, New York Practice, Commercial Litigation
`in New York State Courts (4th ed. 2018) ...................................................................................... 8
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`David D. Siegel & Patrick M. Connors,
`New York Practice (6th ed. 2018) ........................................................................................... 4, 10
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`Weinstein, Korn & Miller, New York Civil Practice
`(David L. Ferstendig ed., 2d ed. 2018) ................................................................................ 3, 4, 11
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`Plaintiff Casita, L.P. (“Casita”) respectfully submits this memorandum of law in support of
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`its motion pursuant to CPLR 5229 for an order (i) restraining the defendants from making or
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`suffering any sale, assignment, transfer, or interference with any property in which they have an
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`interest; and (ii) directing the defendants to submit to an examination, by producing documents
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`requested by Casita, and by answering questions under oath in a deposition to be conducted by
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`Casita’s counsel.1
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`PRELIMINARY STATEMENT
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`Casita has just learned that Glaser is transferring, concealing, and disposing of assets to
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`avoid payment of any judgment in this action. Absent an order from this Court, there is a danger
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`that he will move all of his recoverable assets—plus the assets of the three defendant MapleWood
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`companies he indisputably controls—out of the reach of potential creditors, including Casita and
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`the other investors in the Offshore Fund. Glaser and MapleWood should be stopped immediately
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`and held to account for their latest wrongdoing.
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`On May 17, 2018, after a seven-week trial for breach of fiduciary duty, the jury returned a
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`verdict against Glaser and MapleWood in the amount of $14,997,540. The defendants moved to
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`set aside the verdict. Their motion was briefed, and argument was heard on July 31, 2018. A
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`decision on the motion is pending.
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`Separately, Glaser is a defendant in an action for divorce that was filed by his wife, Robyn
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`Glaser, in state court in Michigan. Mrs. Glaser began the divorce action in May 2017, but Casita
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`did not learn of its existence until late September 2018, when Mrs. Glaser’s counsel contacted
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`Casita’s counsel.
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`1 This memorandum will refer to the defendants MapleWood Holdings LLC, MapleWood Management LP, and
`MapleWood Partners LP collectively as “MapleWood”; to the defendant Robert V. Glaser as “Glaser”; and to
`MapleWood Equity Partners (Offshore) Ltd., the entity on whose behalf Casita filed this lawsuit, as the “Offshore
`Fund.” References to “Ex. __” are to the exhibits accompanying the affirmation of Casita’s counsel, Jerome C. Katz,
`dated November 30, 2018.
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`Upon learning of the divorce action in Michigan, Casita began to obtain the publicly
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`available court papers in the case. Not until this month, however, did Casita obtain papers showing
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`that on May 24, 2018—exactly one week after the jury issued its verdict in this case—Glaser’s
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`lawyer admitted to the judge in Michigan in open court, with Glaser himself in the courtroom, that
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`Glaser was engaging in an “elaborate protection scheme” with the aim of “putting assets outside
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`the reach of creditors,” including, specifically, Casita. (Ex. A at 16:16-23, 17:8-10.) As aptly
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`described in a brief that was filed by Mrs. Glaser’s lawyer: “[D]uring [a] hearing, Glaser’s counsel
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`informed the Court about certain financial planning engaged in by Defendant Glaser in an effort to
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`make himself ‘judgment proof.’” (Ex. C at ¶ 22 (emphasis added).)
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`As part of the scheme to hide assets, Glaser placed his house in Midland, Michigan, “solely
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`in Mrs. Glaser’s name” because of “pending lawsuits” filed by Casita and a related entity. Glaser’s
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`lawyer admitted that putting the house in Mrs. Glaser’s name “was part of the scheme.” (Ex. A at
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`12:13-16, 17:11-17.)
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`In addition, just five days after the jury rendered its verdict in this case, Glaser moved
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`$150,000 from the couple’s joint account at the Gibraltar Private Bank (now called Iberia) to a
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`bank account solely in his wife’s name. (Ex. B at 42:2-4.) And on an unspecified date, Mrs.
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`Glaser took $230,000 out of the couple’s joint account and transferred it to her personal account.
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`(Id. at 41:25-42:2.) Casita believes that this is only the tip of the iceberg.
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`Glaser has professed to the Michigan court that he has no money and that, but for
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`temporary housing on his wife’s farm in Michigan, he is on the verge of homelessness. (Id. at 44:8
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`(“[T]here is nothing left in the bank accounts.”); id. at 45:15-18 (“[T]here are no assets . . . .”);
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`Ex. A at 18:13 (“[I]t’s unfair to leave this man homeless.”).)
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`That is preposterous. Glaser is hardly the pauper he claims to be. He is currently living in
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`an affluent enclave in central Florida known as The Villages. (Ex. D, Proof of Service at 2.) In
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`2013, Glaser sold his posh home in Bay Harbor Islands, Florida, for $4.7 million. (Ex. B at 39:21-
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`22.) And he and MapleWood received tens of millions of dollars in fees while breaching their
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`fiduciary duty to their investors. Indeed, between 1999 and 2006, Glaser and MapleWood received
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`more than $36 million in fees. (Katz Aff. ¶ 18.)
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`In short, it is simply outrageous for Glaser to plead poverty. His assets, which likely total
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`in the millions or tens of millions of dollars, are being quietly secreted away, outside the reach of
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`potential creditors like Casita, under what Glaser’s own lawyer calls an “elaborate protection
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`scheme.” Glaser and MapleWood should be restrained from further transferring and concealing
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`assets to avoid judgment, and they should be ordered to account, under penalty of perjury or
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`contempt, for all of the assets under their control, whether held directly or indirectly, or personally,
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`or under the guise of corporate entities or third parties—in other words, no matter how or where
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`those assets are stashed.
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`LEGAL STANDARD
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`Under CPLR 5229, a party that has obtained a favorable jury verdict may invoke certain
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`enforcement procedures before entry of judgment. CPLR 5229 reads as follows:
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`Ҥ 5229. Enforcement before judgment entered. 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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`The purpose of this statute is “to prevent an adverse party from disposing of assets in order
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`to avoid judgment.” Gallegos v. Elite Model Mgmt. Corp., 1 Misc. 3d 200, 202 (Sup. Ct. N.Y.
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`Cty. 2003) (York, J.).2 The statute “provides both for discovery relating to the party against whom
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`a decision or verdict has been rendered and for an order of restraint against the adverse party.”
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`2 Gallegos is a leading case, described in Weinstein, Korn & Miller, 11 New York Civil Practice (hereinafter
`“Weinstein, Korn & Miller”) CPLR ¶ 5229.00 (David L. Ferstendig ed., 2d ed. 2018), at n.2, as containing an
`“excellent discussion of the statute.”
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`Demirovic v. Ortega, 296 F. Supp. 3d 477, 481 (E.D.N.Y. 2017) (applying New York law); see
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`also David D. Siegel & Patrick M. Connors, New York Practice (hereinafter “Siegel”) § 516 (6th ed.
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`2018).
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`An “examination” of an adverse party may take the form of a deposition, or the production
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`of documents, or both. See, e.g., Gallegos, 1 Misc. 3d at 208 (order to appear for deposition); Berg
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`v. Au Café, Inc., 2009 WL 1905143, at *1 (Sup. Ct. N.Y. Cty. June 24, 2009) (Gische, J.) (order to
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`produce documents and appear for deposition).
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`CPLR 5229’s “restraint” provision extends CPLR 5222—the statute that governs post-
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`judgment restraining notices—to the period between the time a verdict is issued and the time
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`judgment is entered. Sequa Capital Corp. v. Nave, 921 F. Supp. 1072, 1076 (S.D.N.Y. 1996)
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`(Scheindlin, J.) (applying New York law). CPLR 5222(b) provides that “[a] judgment debtor . . .
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`served with a restraining notice is forbidden to make or suffer any sale, assignment, transfer or
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`interference with any property in which he or she has an interest . . . .” The court has broad
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`authority to enter an order of restraint to remain in effect until judgment is satisfied. See Berg,
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`2009 WL 1905143, at *1.
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`“[O]ther than having received a favorable verdict or decision, there are no prerequisites to
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`obtaining the relief provided in CPLR 5229.” Sequa Capital, 921 F. Supp. at 1076 (emphasis
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`added). “It is not necessary,” for example, “to show that the defendant is actually disposing of
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`assets. Nor is the pendency of a motion to vacate the verdict a bar.” Siegel § 516. “The court
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`must exercise its discretion in the light of the object of [the statute to] prevent the party against
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`whom a verdict or decision has been rendered from secreting or conveying his property to avoid
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`payment of the judgment.” Weinstein, Korn & Miller, CPLR ¶ 5229.04. In exercising their
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`discretion, courts have considered the danger that the adverse party may dispose of assets; the
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`adverse party’s general financial condition; and the likelihood that the verdict or decision will
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`proceed to judgment.
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`Here, the balance tips overwhelmingly in Casita’s favor.
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`ARGUMENT
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`RELIEF UNDER CPLR 5229 IS NECESSARY TO PREVENT GLASER
`FROM FURTHER CONCEALING, TRANSFERRING, AND DISPOSING OF
`ASSETS TO AVOID JUDGMENT
`
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`We know from the court proceedings in Michigan that Glaser is concealing, transferring,
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`and disposing of assets that could otherwise satisfy, in whole or in part, a potential multi-million-
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`dollar judgment for money damages in this action. (Katz Aff. ¶¶ 10-15 (citing Exs. A-C).)
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`Glaser’s own lawyer has admitted to this deception, in each case while Glaser himself was sitting
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`in the courtroom. Because of the danger that Glaser and MapleWood will further hide or dissipate
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`assets, this Court should restrain them from making or suffering any sale, assignment, transfer, or
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`interference with any property in which they have an interest, whether direct or indirect, present or
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`contingent.
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`The Court should also order Glaser and MapleWood to submit to an examination, by
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`immediately producing all documents, communications, and other records concerning their assets
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`and liabilities, as requested in Casita’s Post-Verdict Request for Documents, a copy of which is
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`attached as Exhibit E to the Katz Aff., and by appearing thereafter at a deposition, conducted by
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`Casita’s counsel, to answer questions under oath.
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`A. Glaser Is Engaged in What His Own Lawyer Has Admitted Is an “Elaborate
`Protection Scheme” to Hide Assets to Avoid Judgment
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`
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`Courts regularly grant relief under CPLR 5229 when there is a danger that the adverse party
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`may dispose of assets that could otherwise be collected to satisfy a potential judgment. In
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`Gallegos, the court ordered a restraint and examination where there was a danger that the
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`defendants were diverting assets to overseas accounts and affiliates to avoid judgment. 1 Misc. 3d
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`at 203. Similarly, in Sequa Capital, the court entered a restraining order where the defendant had
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`engaged in at least three property transactions that happened to take place at or about the time of
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`the court’s decision in plaintiff’s favor. 921 F. Supp. at 1074, 1076. See also, e.g., Perez v. 347
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`Lorimer LLC, 2011 WL 7394419, at *1 (Sup. Ct. Kings Cty. May 3, 2011) (granting relief where
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`“defendant [wa]s attempting to render itself judgment proof”); Kaminsky v. Kahn, 46 Misc. 2d
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`131, 132 (Sup. Ct. N.Y. Cty. 1965) (granting relief where defendant transferred assets to family
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`member); Berg, 2009 WL 1905143, at *1 (granting relief where the losing party’s lawyer said that
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`collection of any judgment would be very difficult); Sovereign Bank v. Poczatek, 2012 WL
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`6541852, at *1 (Sup. Ct. Nassau Cty. Sept. 4, 2012) (Bucaria, J.) (granting relief where defendants
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`were “about to conceal assets” and where they had transferred real properties in Florida to limited
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`liability companies that they owned).
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`Here, the facts could not be worse for Glaser and MapleWood. This Court need not labor
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`to infer what Glaser has been up to. Glaser’s own lawyer admitted to an “elaborate” asset
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`protection “scheme.” On May 24, 2018—mere days after the jury rendered its verdict against
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`Glaser and MapleWood in the trial of this case—Glaser’s lawyer said the following to a Michigan
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`court:
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`“[Glaser] just returned from a 10 week trial in New York. He
`is represented by the Akerman Law Firm in Miami and Lauderdale.
`They’re actually an international firm. What [Mrs. Glaser’s lawyer]
`fails to tell you is, is that because of [the lawsuits filed by Casita and
`others], Mr. Glaser, in conjunction with the Akerman Law Firm, had
`to come up with a protection scheme. And part of that protection
`scheme, as this Court knows, is putting assets outside the reach of
`creditors. . . .
`
`
`“[Glaser] had to have a residence in Florida because
`Akerman said—in fact his driver’s license is still Florida, he had to
`have a Florida residence because of the nature of the lawsuits. They
`had to come up with this elaborate protection scheme . . . .
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`“[W]ith the advice of Akerman and because of all these
`pending lawsuits and the potential of [the Glasers] losing everything
`that they had . . . [t]hat was part of the scheme. . . .
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`“[Glaser] had to go to Florida and have a Florida address
`because it was required for the lawsuits.”
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`(Ex. A at 16:16-17:24 (emphasis added).)
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`Thus, by his lawyer’s own admission, Glaser is engaged in a “scheme” to conceal assets
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`from Casita and others. Glaser’s lawyer further admitted that as part of the scheme to hide assets,
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`Glaser placed his house in Midland, Michigan, in his wife’s name. (Ex. A at 12:13-16, 17:11-17.)
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`In addition, just five days after the jury found Glaser and MapleWood liable for breach of fiduciary
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`duty in this action, Glaser moved $150,000 from one of the couple’s joint bank accounts to an
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`account solely in his wife’s name. (Ex. B at 42:2-4.) And Mrs. Glaser moved $230,000 from this
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`joint account to one of her own accounts. (Id. at 41:25-42:2.)
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`Such transfers, admitted by counsel to have been part of a “scheme” to “put[] assets outside
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`the reach of creditors,” may well constitute fraudulent transfers under New York’s Debtor and
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`Creditor Law (“DCL”) § 276 (actual fraudulent conveyance)3 or under DCL § 273-a (constructive
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`fraudulent conveyance).4 See Robert L. Haig, New York Practice, Commercial Litigation in New
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`York State Courts § 84:26 (4th ed. 2018) (“Generally, a conveyance is deemed to be fraudulent if
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`the debtor had actual intent to hinder, delay, or defraud either present or future creditors.”).
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`The admissions by Glaser’s lawyer are more than sufficient to show there is a danger that
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`Glaser and MapleWood are hiding or transferring assets to avoid judgment. Of course, nothing in
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`the “[case law], the commentaries, nor the statute itself requires the prevailing party to submit
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`evidence that assets are definitively being disposed of or diverted as a prerequisite to obtaining
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`injunctive relief.” Gallegos, 1 Misc. 3d at 207 (emphasis added). See also Leser v. U.S. Bank
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`Ass’n, 2013 WL 867151, at *3 (E.D.N.Y. Mar. 7, 2013) (Matsumoto, J.) (agreeing with the
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`magistrate judge’s rejection of “argument that New York law requires showing of dissipation or
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`danger of dissipation of assets before ordering prejudgment restraint”). But where, as here, there
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`actually is compelling evidence that Glaser and MapleWood are hiding assets to avoid judgment,
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`the case for relief is all the more urgent.
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`3 DCL § 276 provides that “[e]very conveyance made and every obligation incurred with actual intent, as distinguished
`from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both
`present and future creditors.” (Emphasis added.) As the First Department has explained, a party seeking to show
`actual intent may rely on “badges of fraud”—“circumstances so commonly associated with fraudulent transfers that
`their presence gives rise to an inference of intent.” Such circumstances include “a close relationship between the
`parties to the alleged fraudulent transaction; a questionable transfer not in the usual course of business; inadequacy of
`the consideration; the transferor’s knowledge of the creditor’s claim and the inability to pay it; and retention of control
`of the property by the transferor after the conveyance.” Wall Street Assocs. v. Brodsky, 257 A.D.2d 526, 529 (1st
`Dep’t 1999).
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`4 DCL § 273-a provides that “[e]very conveyance made without fair consideration when the person making it is a
`defendant in an action for money damages or a judgment in such an action has been docketed against him, is fraudulent
`as to the plaintiff in that action without regard to the actual intent of the defendant if, after final judgment for the
`plaintiff, the defendant fails to satisfy the judgment.” (Emphasis added.)
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`B. Glaser Claims That He Is in Financial Distress
`As the court noted in Gallegos, “[t]hat an adverse party is in financial distress may be an
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`issue for the court to consider in assessing the utility of CPLR 5229.” 1 Misc. 3d at 206. An
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`adverse party’s financial distress could frustrate a successful plaintiff’s efforts to collect on a
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`potential judgment. “[S]uch concerns actually underscore the potential that the defendants may not
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`maintain funds sufficient to satisfy the judgment.” Demirovic, 296 F. Supp. 3d at 483.
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`In his divorce case in Michigan, Glaser’s lawyer insists that Glaser is penniless. (Ex. B at
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`42:19-20 (“He [Glaser] doesn’t have anything left. He’s got a few thousand dollars left in
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`savings.”).) Glaser claims that he lacks funds to pay spousal and child support. (Id. at 45:15-19
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`(there are “no assets” and “no receipt of any income in the future”).) Glaser claims that his wife
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`has spent down his lifetime of earnings, and that he will largely be subsisting on income from
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`Social Security. (Id. at 45:23-24 (“He’s applying for Social Security as we speak”); id. at 45:25-
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`46:7 (“[Glaser] said, ‘we have no more money. I can’t pay any more bills. [Mrs. Glaser has] spent
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`all the money.’”).)
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`If true, these facts favor granting relief under CPLR 5229, because Glaser’s alleged
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`financial distress could frustrate Casita’s ability to collect on a potential judgment. If false, Glaser
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`is misleading the court in Michigan, and he will face the consequences of his deceit.
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`In Casita’s view, if Glaser and MapleWood claim financial distress, it is only because they
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`have hidden or disposed of millions of dollars in assets, or are about to, in the cynical belief that
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`they can thereby render the jury’s verdict, and any judgment entered by this Court, worthless
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`pieces of paper.
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`Court filings in the Michigan divorce action suggest that Glaser’s personal financial
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`statement, signed by Glaser, revealed his net worth as of 2013 to be approximately $5 million. (Id.
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`at 35:13-23.) Glaser is currently living in an affluent community in central Florida known as The
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`Villages. (Ex. D, Proof of Service at 2.) And as the overwhelming evidence at the trial of this case
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`proved, Glaser and MapleWood pocketed millions and millions of dollars in fees for themselves
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`while breaching their fiduciary duty to their investors. Their revenues were more than $36 million
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`just between 1999 and 2006. (Katz Aff. ¶ 18.)5
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`Any concerns that may be expressed by Glaser or MapleWood that a restraining order will
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`leave Glaser without the means to live, or cause MapleWood to cease operating, would be
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`unfounded. That is because the CPLR contains built-in protections for potential judgment-debtors.
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`“The restraints imposed by CPLR 5229 do not affect property that is not otherwise available to
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`satisfy a money judgment, such as payment of salaries and living expenses that are ordinarily
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`incurred.” Gallegos, 1 Misc. 3d at 207. See also Berg, 2009 WL 1905143, at *1 (restraint
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`permitted defendant to carry on its business in the ordinary course); Sequa Capital, 921 F. Supp. at
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`1076.
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`C. The Pendency of the Defendants’ Post-Trial Motion Is No Impediment to Granting
`Casita Relief Under CPLR 5229
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`
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`The pendency of Glaser and MapleWood’s motion to set aside the verdict is not a bar to
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`obtaining relief under CPLR 5229. See Siegel § 516. Although a pending post-trial motion may
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`be “a factor” for the trial court to consider when employing its wide discretion “as to the utility of
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`granting 5229 relief,” Gallegos, 1 Misc. 3d at 207, “[the fact] that [a] court has reserved a 4404
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`motion to vacate the verdict does not require a denial of a 5229 application . . . .” Id. (emphasis
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`added).6 That is especially true here, where the Court has already observed at oral argument on the
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`defendant’s post-trial motion that a rational jury, after a seven-week trial, could have considered
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`the “simple, clear nuggets” of testimony and documentary evidence that were presented, and could
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`have concluded, “here are these four or five pieces [of evidence] that fall together easily.” (Dkt.
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`5 Glaser and MapleWood certainly cannot argue that their fortunes have been depleted by legal fees, because Glaser
`and MapleWood’s legal bills for more than a decade have been paid entirely by the Offshore Fund, by insurance, or by
`a combination of the two.
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`No. 1267, at 9:6-11.) As this Court said, Casita’s “compelling story” made “basic sense to the
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`jury” because “everything lines up,” whereas the actions of the defendants’ “don’t make sense.”
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`(Id. at 16:15-18, 20:22.)
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`In any event, granting relief under CPLR 5229 would hardly be premature. Unless and
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`until a jury verdict is set aside, a “defendant should not be permitted to denude himself of his assets
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`so as to render unlikely or impossible plaintiff’s reaping the fruits of his victory if that is what will
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`result.” Kaminsky, 46 Misc. 2d at 132. When a jury has awarded a verdict in a party’s favor, “she
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`is entitled to all the benefits available to the prevailing party . . . unless and until the verdict is not
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`entered as a judgment.” Gallegos, 1 Misc. 3d at 207.
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`6 In Weinstein, Korn & Miller, CPLR 5229:07, the author notes that in Unex, Ltd. v. Arsygrain Int’l Corp., 102 Misc.
`2d 810 (Sup. Ct. N.Y. Cty. 1979), “the court opined in dictum that relief under CPLR 5229 is not available when a post
`verdict motion is pending.” The author concludes, however, that the contrary rule in Gallegos “represents the better
`analysis.” Other courts, pre- and post-Gallegos, have agreed that pending or planned challenges to a verdict are no
`basis to deny relief under CPLR 5229. See Berg, 2009 WL 1905143, at *1; Kaminsky, 46 Misc. 2d at 132.
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`FILED: NEW YORK COUNTY CLERK 11/30/2018 03:06 PM
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`INDEX NO. 600782/2007
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`CONCLUSION
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`For the reasons set forth above, the Court should grant Casita’s motion, restrain the
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`defendants from making or suffering any sale, assignment, transfer, or interference with any
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`property in which they have an interest, and order the defendants to submit to an examination.
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`Dated: November 30, 2018
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`Respectfully submitted,
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`ROPES & GRAY LLP
`
`
`/s/ Jerome C. Katz
`By
`Jerome C. Katz
`
`Julian I. Helisek
`
`Kendall S. Cowles
`
`1211 Avenue of the Americas
`New York, New York 10036
`Telephone: (212) 596-9054
`Facsimile: (646) 728-1846
`jerome.katz@ropesgray.com
`julian.helisek@ropesgray.com
`kendall.cowles@ropesgray.com
`
`Attorneys for Plaintiff Casita, L.P.
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