Homapour v. 3M Props., LLC

Homapour v 3M Props., LLC 2025 NY Slip Op 31354(U) April 17, 2025 Supreme Court, New York County Docket Number: Index No. 653795/2015 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 04/17/2025 04:41 PM INDEX NO. 653795/2015 NYSCEF DOC. NO. 1856 RECEIVED NYSCEF: 04/17/2025

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M -----------------------------------------------------------------------------------X MEHRNAZ NANCY HOMAPOUR, BALANCE PROPERTY, INDEX NO. 653795/2015 LLC,JAM REALTY NYC LLC,UNITED CHELSEA, LLC,UNITED EAST, LLC,UNITED FIFTH, LLC,UNITED FLATIRON LLC,UNITED GREENWICH, LLC,UNITED MOTION DATE 10/04/2024 HAY, LLC,UNITED NATIONWIDE REALTY LLC,UNITED PRIME BROADWAY, LLC,UNITED PRIME LLC,UNITED MOTION SEQ. NO. 020 SEED LLC,UNITED SQUARE LLC,UNITED VILLAGE, LLC,UNITED WEST, LLC, DECISION + ORDER ON Plaintiffs, MOTION -v- 3M PROPERTIES, LLC,BALANCE PROPERTY, LLC,JAM REALTY NYC LLC,UNITED CHELSEA, LLC,UNITED EAST, LLC,UNITED FIFTH, LLC,UNITED FLATIRON LLC,UNITED GREENWICH, LLC,UNITED HAY, LLC,UNITED NATIONWIDE REALTY LLC,UNITED PRIME BROADWAY, LLC,UNITED PRIME LLC,UNITED SEED LLC,UNITED SQUARE LLC,UNITED VILLAGE, LLC,UNITED WEST, LLC,JACOB NY HOLDINGS LLC,JACOB NY HOLDINGS LTD., 172 MULBERRY REALTY LLC,1007 LEX AVE LLC,69 CLINTON NPG LLC,163 CHRYSTIE REALTY LLC,427 EAST 77TH STREET LLC,360 EAST 50TH STREET ASSOCIATES LLC,356 EAST 50TH STREET ASSOCIATES LLC,ORANGE & BLUE LLC,ALEXANDER SELIGSON, SELIGSON ROTHMAN & ROTHMAN, GERARDINE T.

DELLARATTA, AS EXECUTRIX FOR THE ESTATE OF HENRY DELLARATTA, NATALIE HAROUNIAN, MEHRNOSH PIROOZIAN, JACOB HAROUNIAN, MARK HAROUNIAN, JOHN DOES 1-100, Defendants. -----------------------------------------------------------------------------------X HON. JOEL M. COHEN: The following e-filed documents, listed by NYSCEF document number (Motion 020) 1388, 1389, 1390, 1391, 1392, 1393, 1394, 1395, 1396, 1397, 1398, 1399, 1400, 1401, 1402, 1403, 1404, 1405, 1406, 1407, 1408, 1409, 1410, 1411, 1412, 1413, 1414, 1415, 1416, 1417, 1418, 1419, 1420, 1421, 1422, 1423, 1424, 1425, 1426, 1427, 1428, 1429, 1430, 1431, 1432, 1433, 1434, 1435, 1436, 1437, 1438, 1439, 1440, 1441, 1442, 1467, 1468, 1469, 1470, 1471, 1472, 1473 were read on this motion to PRECLUDE .

653795/2015 HOMAPOUR, MEHRNAZ NANCY vs. 3M PROPERTIES, LLC Page 1 of 4 Motion No. 020

1 of 4 [* 1] FILED: NEW YORK COUNTY CLERK 04/17/2025 04:41 PM INDEX NO. 653795/2015 NYSCEF DOC. NO. 1856 RECEIVED NYSCEF: 04/17/2025

The Harounian Defendants1 move to preclude the testimony of Plaintiff Mehrnaz Homapour’s forensic accounting expert, Jack Gutierrez. For the reasons set forth below, the Harounian Defendants’ motion is denied.

Expert testimony is admissible where it is helpful to the trier of fact, based on facts in the record or of a type reasonably relied upon by experts in the field, and grounded in a reliable methodology that is generally accepted within the expert’s professional discipline (see Parker v Mobil Oil Corp., 7 NY3d 434, 446 [2006]; Hambsch v NYC Tr. Auth., 63 NY2d 723, 726 [1984]). New York courts follow a liberal standard for admissibility, generally (though not always) preferring to allow the fact finder to evaluate the strength of expert testimony through cross-examination rather than excluding it outright: “[a]ny defects in the opinions of plaintiff’s experts or the foundation on which those opinions were based . . . [go] to the weight to be accorded that evidence by the trier of fact, not to its admissibility in the first instance” (Sadek v Wesley, 27 NY3d 982, 983 [2016]; see Adamy v Ziriakus, 92 NY2d 396, 402-03 [1998]).

The Harounian Defendants’ primary challenge to Mr. Gutierrez’s stems from his alleged over-reliance on his associates. “[A]n expert may rely on assistants or the opinions of other experts in formulating their own expert opinions” (Faulkner v Arista Recs. LLC, 46 F Supp 3d 365, 385 [SD NY 2014]). However, the expert must supervise, direct, or participate in that work: “[t]he expert witness must in the end be giving his own opinion. He cannot simply be a

FILED: NEW YORK COUNTY CLERK 04/17/2025 04:41 PM INDEX NO. 653795/2015 NYSCEF DOC. NO. 1856 RECEIVED NYSCEF: 04/17/2025 conduit for the opinion of an unproduced expert” (Malletier v Dooney & Bourke, Inc., 525 F Supp 2d 558, 664 [SD NY 2007]; see Pacific Life Ins. Co. v Bank of NY Mellon, 571 F Supp 3d 106, 115 [SD NY 2021]).

Plaintiff retained Mr. Gutierrez, a Certified Public Accountant licensed in New York and Florida, to perform a forensic accounting analysis in connection with this litigation in early 2021.

Gutierrez testified that although he signed the expert report submitted in this case, portions of the report—specifically those detailing the entities, ownership structures, and methodologies—were co-authored with his associate, Stefano D’Urso (NYSCEF 1469 [Gutierrez Deposition Transcript] at 23:13-24:19). Mr. D’Urso, along with another associate, Joseph Gangemi, conducted the primary review of more than 4,000 transactions, including invoices, checks, and supporting documents (id.). Mr. Gutierrez testified that he did not personally review the original transaction records, and instead reviewed the work completed by his staff (id. at 28:2-4).

Nevertheless, Mr. Gutierrez stated that he supervised and directed the associates’ work, meeting with them periodically to assess their progress, discuss their findings, and determine whether further analysis was warranted (id. at 26:19-27:9). Mr. Gutierrez retained final decision-making authority over the scope and sufficiency of the review and found no errors in the associates’ work (id. at 27:10-18). Though the degree of Mr. Gutierrez’s involvement in analyzing the transactions at issue is a valid subject to raise on cross examination, and his deposition testimony may limit the permissible scope of his testimony at trial, his testimony should not be precluded entirely (though the Court may revisit this issue depending on the specific testimony offered at trial).

The Harounian Defendants also take issue with Mr. Gutierrez listing certain transactions in his report as “likely fraudulent” or “partially fraudulent,” arguing that such categorizations 653795/2015 HOMAPOUR, MEHRNAZ NANCY vs. 3M PROPERTIES, LLC Page 3 of 4 Motion No. 020

Accordingly, it is ORDERED that Defendants’ motion to preclude the testimony of Mr. Gutierrez is denied, without prejudice to asserting specific objections at trial.

This constitutes the decision and order of the Court.

4/17/2025 DATE JOEL M. COHEN, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

653795/2015 HOMAPOUR, MEHRNAZ NANCY vs. 3M PROPERTIES, LLC Page 4 of 4 Motion No. 020