Herszdorfer v. Goldberg

Herszdorfer v Goldberg 2024 NY Slip Op 30010(U) January 2, 2024 Supreme Court, Kings County Docket Number: Index No. 26187/92 Judge: Genine D. Edwards 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: KINGS COUNTY CLERK 01/02/2024 04: 35 PMI INDEX NO. 26187/1992 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/02/2024

At an IAS Tenn, Part 80 of the Supreme Court of the State of New York. held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklvn, New York, on the zml day of January 2024. .

PRESEN HON. GENINE D. EDWARDS, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X PAUL HERSZDORFER. as Executor of the Estate of LILLIAN HERSZDORFER, Deceased, and PAUL HERSZDORFER, Individually, Plaintiffs, DECISION, ORDER, AND Jt 1DGMENT - against - Index No. 26187/92 (converted toe-filing) BARRY GOLDBERG, M.D., Mot. Seq. No. 7; Inquest on Damages Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The following e-filed papers read herein: NYSCEF Doc No.: Order to Show Cause. Affimrntions, and Exhibits Annexed .. . 86. 76-83 Memorandum of Law in Opposition and Exhibits Annexed .. . 88-94 Post-Argument Letter Submission ...................... . 96 In this action to recover damages for medical malpractice and wrongfu] death, plaintiff Paul Herszdorfer ('"plaintiff'), individually and as the executor of the estate of his late mother, Lillian Herszdorfer (the ''decedent"), moves, by order to show cause, dated August 24, 2023 (NYSCEF Doc No. 86), for an order restraining and staying defendant Barry Goldberg. M.D. ("defendant"). from disposing of, encumbering, pledging, mortgaging, transferring, or in any way affecting the alienability of premises at Deer Park Avenue, Dix Hills, New York 11746 (the "Suffolk County property"), until further order of the court.

On September 18, 2023, the Court heard oral argument on plaintiffs motion and concurrent1y held an inquest on damages in accordance with the Decision and Order,

[* 1] 1 of 4 r- [FILED: KINGS COUNTY CLERK 01/02/2024 04:35 P~ INDEX NO. 26187/1992 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/02/2024 dated June 25, 2023. The Court reserved decision on both the motion and the inquest on damages. Defendant opposed both categories of relief.

Determination of Plaintiff's Motion (Seq. No. 7) CPLR § 6301 provides, in relevant part, that ··[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 or suffering to be done, an act in violation of the plaintiffs rights respecting the subject of the action, and tending to render the judgment ineffectual. ... " As the Court of Appeals observed, .. [i]n applying provisional equitable remedies under fthe predecessors to the CPLR], from as early as 1892 ... , our courts have consistently refused to grant general creditors a preliminary injunction to restrain a debtor's asset transfers that allegedly would defeat satisfaction of any anticipated judgment.'' Credit Agricole Jndosuez v. Rossiyskiy Kredit Bank, 94 N.Y.2d 541. 708 N.Y.S.2d 26 (2000).

"A preliminary injunction may not be obtained to preserve assets as security for a potential monetary judgment even if the evidence shows that a party intends to frustrate any judgment by making it uncollectible... Fatima v. Twenty Seven-Twenty Four Realty Corp .. 65 A.D.3d 1079. 885 N.Y.S.2d 224 (2d Dept., 2009). Thus. as a potential general unsecured creditor of defendant. plaintiff is not entitled to any injunctive relief with respect to the Suffolk County property. See Buckley v. McAteer, 210 A.D.3d 1044.

179 N.Y.S.3d 329 (2d Dept., 2022), Iv. dismissed 39 N.Y.3d 1128, 188 N.Y.S.3d 10 (2023); Fatima. 65 A.D.3d 1079, 885 N. Y.S.2d 224; Hall v. Cucco, 5 A.D.3d 631, 774 N.Y.S.2d 770 (2d Dept., 2004). ln light of the foregoing, defendant's remaining objections to plaintiffs motion were rendered academic.

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Inquest on Plaintiff's Damages ""[T]he sole issue to be determined at the inquest was the extent of the damages sustained by the plaintiffs." Kim v. S&M Caterers, Inc., 136 A.D.3d 755, 24 N.Y.S.3d 743 (2d Dept., 2016). ··At the inquest. the plaintiffs bore the burden of setting forth a prima facie case as to damages.'· Oparaji v. 245-02 Merrick Blvd, LLC 149 A.D.3d 1091, 54 N.Y.S.3d 408 (2d Dept., 2017). 1 Here, however. plaintiff failed to introduce certified medical records and/or expert testimony on the issue of damages. which (according to the complaint at NYSCEF Doc No. 9) consisted of pain and suffering as well as wrongful death. Under the prevailing easel aw in the Second Judicial Department, the absence of requisite proof was fatal to plaintiffs prima facie case as to damages. See Castaldini v. Walsh, 186 A.D.3d 1193, 127 N.Y.S.3d 917 (2d Dept., 2020); Kotlyar v. Strogov. 58 A.D.3d 693. 871 N.Y.S.2d 662 (2d Dept.. 2009)~ Abbas v. Cole, 7 A.D.3d 649, 776 N.Y.S.2d 846 (2d Dept., 2004).

Accordingly, the complaint must be dismissed, as more fully set forth in the decretal paragraphs below. See Jacobs v. New York City Tr. Auth., 14 Misc 3d l 30(A), 836 N.Y.S.2d 485 (App. Term. 2d & 11 th Jud. Dists. 2007).

[FILED: KINGS COUNTY CLERK 01/02/2024 04:35 P~ INDEX NO. 26187/1992 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/02/2024 ■ , r ,.

Conclusion Based on the foregoing and after oral argument, it is ORDERED and ADJUDGED that plaintiffs order to show cause, dated August 24, 2023 (NYSCEF Doc No. 86). is denied. and all stays therein are vacated nunc pro tune to the date thereof~ and it is further ORDERED and ADJUDGED that plaintiffs complaint is dismissed without costs or disbursements, and it is further ORDERED that defendant's counsel is directed to electronically serve a copy of this Decision, Order, and Judgment with notice of entry on plaintiffs counsel and co- counsel, as well as to electronically file an affidavit of service thereof with the Kings County Clerk.

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