Kahan v. 960 Franklin LLC

Kahan v 960 Franklin LLC 2025 NY Slip Op 30134(U) January 6, 2025 Supreme Court, Kings County Docket Number: Index No. 536153/2022 Judge: Leon Ruchelsman 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 01/09/2025 01:27 PM INDEX NO. 536153/2022 NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 01/09/2025

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL ;8 -----.-. ------- ------: -----. - . -·- ··-- .. - ·--.-:-x HAIM KAHAN, Plaint iff, Decisio n and order - agains t - Index No. 536153 /2022 FRANKliIN LLC and DARYL HAGLER, January 6, 2025 Defend ants, ----~-------- --------- -------- ----- -- X PRESENT: HON. LEON RUCHELSMAN Motion Seq. #8 & #9 The plaint iff has moved seeking summar y judgem ent. The defend ants have cross-m oved seeking summai:'y jµdgern ent or alterna tively seek furthe r discov ery. Th~ motion s have .been oppose d re_spec ti vely. Papers were submit ted by the parties and after review ing all the argume nts, this c9urt now makes the followi ng determ ination .

The defend ant Hagler is a member of CDK Real Estate LLC which is the Sole owner of defend ant 960 Frankl in LLC, On July 19, 2022, 960 Frankl in LLC entered into contra cts to purcha se two parcel s of land for $42,50 0,000 and $40O,qo o respec tively. Down paymen ts were made 0£ ten percen t for each parcel . Therea fter, non-pa rty Chesky Weisz approac hed the pla:.i;n tiff to invest in a real estate deal. On August 9, 2022 the plaint iff investe d and thus wired $4,500 ,000 to an escrow agent ~ased.u pon ~epreS entatio ns of Weisz~ The next day, ~agler assigne d his.

rights ih 960 Frankl in LLC to an entity O\o.1:ned by C.nesky Weisz called 960 Frankl in Owner LLC. [here.in after! the 'Weisz entity '] .

The assignm ent was designe d to take place\ in two stages . First,

Concerning the assignment, Hagler stated that ''if the Weisz Entity failed to make the $10 million payment by the required deadline, (i) it would be deemed in defauJt of the Assignment Agreement, (ii) my "Reversionary Right"' to rescind the 51'(; Assignment Agreement would be deemed autoi:natically exercised, (iii) it would forfeit any interest in 960 Franklin, {iv) I would be permitted to retain the $4.5 million Down Payment as liquidated damages, c;nd (v) I; acting thi:pugh. 960, Fran.klin, would ' be permitted to close directly with the Underlying Sellers for the purchase .of the Property" ( ~ , A.ff ir~ation of Qaryl Hagier, '

!21 [NYSCEF Dbc. No. 116]).

Prior to the closing, on October 28, 2022 the plaintiff ;

Kal1an sent a letter to Hagler informing h!im that he had provided the four and a half million dollar deposiit and that Weisz had fraudulently represented the nature of th:e investment and the pending transaction. That letter went un:addressed.

On November 2, 2022, the day of thej closing, the Weisz entity filed for bankruptcy and failed td furnish ten million dollars pursuant to the assignment agreement. At that juncture Hagler, through 960 Franklin LLC closed o)'l the properties in efforts "to prevent the loss of the Depos'its" (see, Affirmation of Daryl Hagler, !44 [NYSGEF Doc. No. 116J). Hagler explained that upon the default of the Weisz entity, Weisz "automatically forfeited any interest in 960 Franklin, 1 was entitled to retain the Down Payment as liquidated damages, abd I was expressly permitted to Close title Under the Uhderrying Sales Contracts and purchase the Property from the Underlying! Sellers (through 960 Franklin)" (see, Affirmat.ion of Daryl Hag!ler, 9[43 [NYSCEF Doc.

No. 116]). Thus, Hagler utilized Kahan' si fµnds to salvage the deposits made including Hagler' s own depo!sit.

This lawsuit was filed and Kahan a.!sserted two claims, for unjust enrichrnie:nt and c:omrersion. The co~plaint alleges that Hagler unjustly ut:Lli.zed Kah.ah' s investme~t funds and such funds should be retµrned. Each party has essen~ially .moved se.eking '

Conclusions of Law ;

Where the· material facts at issue i!n a case are in dispute summary judgment can.riot be granted CZucke:rman v. City of New York, 49 NYS2d 557, 427 NYS2d 595 [1980] )!. Generally, it is for the jury, the trier of fact to determine ithe legal cause of any injury, however; where only one conclusio!n may be drawn from the facts then the question: of legal cause maiy be decided by the trial court as a matter o:E law {Marino v. Jamison, 189 AD3d 1021, 136 NYS3d 324 [2d Dept., 2021) .

There is a dispute why the funds of :Kahan were wired and it is c;urious that there is no contemporanedus memorandum delineating the nature of the investment.! In any event both the plaintiff and defendant each assert that there are no questions of fact and that each is entitled to su~ary relief.

Hagler asserts the funds were given because "the Weisz Entity needed to pay for the Assignment Agreemen:t to become effective and that would be immediately released tu the Underlying Sellers' counsel to ,secure a deal to acquire the p'.roperty through 960 Franklin .:from the Underlying Sellers" (Memorandum in Opposition, page 2 [NYSGEF Doc. No. 2 69] ) . Thus, Hagler insists Kahan was fully aware o:E the assignment agreement ahd by in:yestih.g funds with Weisz, Kahan. canriot assert greater r:ights that Weisz . Thus, by dint. of the failure. of Weisz to satis.;Ey the. conditi.ons of the

First, the voluntary payment doctrinje do.es not act to bar the plaintiff's claims sought here. That! common law doctrine bars recovery of payments voluntarily made with full knowledge o.f the facts in the al::isence of fraud, duress or a material mistake in law or fact (Dillon v, U-A Columbia Cablevision of Westchester Inc., 100 NY2d 525, 760 NYSZd 726 [2003], Overbay LLC v. Berkman.

Henoch, Peterson. Peddy & Fenchel P.C., 185 AD3d 787, 128 NYS3d 56 [2d Dept., 20201) . The rationale fo:r the rule is the simple truism that "when a party intends to reso;rt to litigation in order to resist paying an unjust demand, :that party should take its position at the time of the demand, and litigate the issue before, rather than after, payment is mad!e;' ( see, Gimbel Brothers Inc .• v. Brook Shopping Centers Inc,, 11ff Ab2d 532, 499 NYS.2 435 [2d Dept., 1986]). In Peyser v. City of :N·ew York, 70 NY 497, 25 sickles 4 9 7 [ 18 7 7 J the court expanded upo:n that reason and explained that ''the reason of this principle is, that a person shall not be permitted, wi.th the knowledgje that the demand made upon hiin is illegal and unfounded, to mak;e payment without resistance, wh$re re.sistance is lawful a.n;d possible, and

.5

Thus, in Putnam v. Time Warner Cable of Southeast Wisconsin Ltd. Partnership. 649 NW2d 626, 255 Wis2d 447 }supreme Court of Wisconsin 2 022] the court '3Xp1ained ''ther:;e are two primary reasons why courts have adopted the volu~tary payment doctrine.

First, the doctrine allows entities that !receive payment for services to rely upon these funds and to :use them unfettered in future activities ... second, the doctrine :operates as a means to settle disputes without litigation by requiring the party contesting the payment to notify the payee of its concerns. A.fte.r such notification, a payee who has acted iwrongfully' cari react to rectify the situation'; (id) .

However, as noted, the doctrine doe~ not apply when the payment is made under a mistake (Caro Capital LLC v. Koch, 653 F. $upp3d 108 [ s. D. N .• Y. 2023]) . Further, !the doctrine is not applicable where allegations '6£ fraud arid misrepreseritatiori exist (Pike v. New York Life Insurance Company,: 72 AD3d 1043, 901 NYS2d 7 6 [2d Dept., 2010]} , Further, the Resta:tement (Third) of Restitution and Unjust Enrichment §27 [2011] entitled "claimartt's Expectation O·f Ownership" states that "±4 the. claimant mak,es expendit:ures to maintain, improve, or add value to property that the claima:n:t rei3:sonab1y expects to retairi or to acquire, and

(because such expectation is frµstrated) another person becomes the unintended beneficiary of the claimant's expenditure, the claimant is entitled to restitution from ~he other as necessary to prevent unjust enrichment" (:Ld). The 'comment to this section explains that "the common feature of the pases within this section is the unexpected turn 0£ events that causes another person to enjoy the fruits of an invesi;:mept frQm wliich the claimant had reasonably expected to benefit himself" (id).

In this case, Kahan asserts he ihve:sted furids with Weisz to purchase the property directly from the o~ner and was unaware of any agreement between Weisz and the defendant (see, Affirmation of Haim Kahan, ']['][4, 18 [NYSCEF Doc. No. 2!11]). That contention is disputed. Thus, there are surely ques;tions of fact whether the funds we:re provided by the plaintiff :under a mistake or based upon misrepresentations which would questiion the applicability of the voluntary payment doctrine. These questions of fact foreclose the doctrine's utility at this !time.

Considering the motions seeking summary judgement, Hagler presents twelve reasons why the plaintiff's motion must be denied and in fact the court should search the r;ecord arid award summary j udgernent to the def endaht. Each of thes;e arguments will be considere.d i,n turn ..

First, Hagler argues that Kahan has: admitted he fqrwi3rded, funds to. Weisz.

Second, Hagler asserts that Kahan' si argument he thought a contract would be negotiated by counsel cbncerning his, down payment and an eventual purchase cannot cjreate any questions of fact. Hagler insists that "if Kahan truLy believed that the bown Payment would not be released until some ;contract "acceptable to [hi:s] lawyers" was negotiated with Weisz :(Kahan.SJ.Aff. '1(8), there would have been no reason for Kahan! to fund the deposit until that contract was negotiated" {emph:asis in original} (see, Memorandum of Law, page 2 [NYSCEF Doc. No;. 269]) .

Third, the defendant's argue the ab'.sence of any writing of such a proposed contract surely undermine:s .i,.ts existence and in fact negates: any such belief at all. Hagter argues that "there· is no such record because Kahan did not possess that belie.f. Rather, he knew that he was S:ilen:tly partner in~ with Weisz by funding the Weisz Entity's Down iPayment to make the Assignment Agreement effective" (see, Memorandum of Law, page 3 [NYSCEF Doc. No. 269]). Moreover, the defendant's dismiss Kahan' s "story" by asserting i t is -supporting exclusive'ly by Kahah's own self-serving affidavit.

Fourth, Hagler argues there is evidence Kahan knew he was• forwarding funds to Weisz to support the agreement between Weisz and Hagler anq there are. no que.stions in :this regard. Thus, o,n ' August 8, 2022 an email. was seht by $hia :Weisz, the son of Chesky We.isz to the. plaintiff. and. his .. .assoc.iate,,•:I outlining t.h.E! structure

B

Further, Hagler argues, it is really irre1evant whether Kahan was aware of the assignment agreement since such agreement existed and Kahan is bound by his "partner" Weisz:.

Fifth, Hagler argues that Kahan performed and in fai::::t wired funds pursuant to the instructions from: Weisz. Moreover; two weeks later Kahan opted to purchase the sn.ares of Weisz and eventua.lly paid Weisz two million dollarff in furtherance of this buyout before defaulting on any further payments. Hagler insists that Kahan must have known of the assignm~nt agreement. Hagler asserts that "to contend otherwise would }ilso ·mean that he did not know what. he was buying from. .Weisz wh~n he exercised his option and paid Weisz yet another $2 million to. buy him out, and thereby committed .$.6.5 million to the dea'.1, No reasonable jury

Weisz .( i . e . , the abi 1 ity to close under the Assignment Ag .re emen t ; exclusively through the Weisz Entity) sin~e Weisz's rights and obligations derived only from the Assigrim~nt Agreement~the sarri.e agreement that governed the Down Payment ~hat Kahan arranged to pay for the Weisz Entity" (see, Memorandufll Of Law, page 7 [NYSCEF Doc. No. 269]) .

Sixth, Hagler insists that Kahan was: aware of the assignment agreement because Kahan's production included a copy of the agreement.

Seventh, Hagler argues that Weisz has sued Kahan in a separate action entitled WeiSz v. Kahan, Index Number 524709/2023 and Kahan never counterclaimed seeking a return of the $4.5 million dollars he gave Weisz. Hagler insists that the failure to seek a return of those funds can only pe an implicit admission by Kahan that he was aware of the assignment agreement between Weisz and Hagler and thus could not in go9d faith seek recovery of thcise funds.

Eighth, Hagler argues it is "preposterous" that Kahan would not have been aware of the assignment agr~ement because he is a ·soprristicated real estate investor.

Ninth, Hagler maintains that Shia weJsz, the son of Chesky Weisz submi tte.ct an af f ictavi t and. confirrnect that Kahan was fully aware of the assignment agreement arid consented to its terms.

Further, Weisz also has submitted affidavits confirming Kahan's knowledge of the assignment agreement.

Tenth, Hagler argues that the origirial complaint filed by Kahan, contains an admission he was aware! of the assignment agreement. The original cotnpla.irit states that based upon the representations of Weisz, Kahan and Weisz, would purchase property and that 11 0n or about Allgust 9, 2022, K:ahp-n wired $4,500,000 (the "Deposit") directly to Abrams Fensterman for the purpose of funding 960 Franklin's down payment to puJ::chase . the Property . and participating as a partial owner of the Property" (.§.§.§., Verifieci Complaint, 'I[ll [NYSCEF Doc. No. 1]).

Eleventh, Hagler argues that Kahan lied about when he first became aware of the assignment agreement.: Kahan has represented he first became aware of ~t shortly befor~ October 28, 2022 when Kahan notified Hagl~r of his involjement ~nd his £ears he had been defra:ucted by Weisz. Hagler now argues that Kahan had been awa:re o.f it for at least a month beforehapd when it had been sent to him at the end of. September 2022.

Twelfth, Hagler argues that ti1e law$uit between Weisz and Kahan reveals that Kahan admitted no improprieties or misrepresentations were made qy Weisz at all.

Thus, Hagler argues the above facts ~emonstrate Kahan cannot obtain summary judgement. Mor.eover, the above arg.uments eliminate any questions .of fact and summafy juq.gement should be

These arguments will now be address;ed. A judicial admission is any act or statement made dulring the course.of a judicial proceeding which essentially con;cedes a disputed fact (..§..§.§., Jones v. Morehead, 68 US 155, 17 L.-~d 662, 1 Wall 155 [1863]). Thus, a statement in a pleadingj admitting ownership of a vehicle is an admission of such ownersh~p and "conclusive" evidence of that fact (Zeqa:rowicz v. Ripatti, 77 AD3d 650, 911 NYS2d 69 [2d Dept., 2010]) . Therefore, a:: formal judicial admission is a substitute for evidence anp. absolves a party with the need to present evidence that is the substance of the admission (see, State Farm Mutual Auto Insurance Company v. Worthington, 405 F.2d 683 [8 th Cir, 1968] )i. To· be Considered a: formal judicial admission the statement or act must be clear, uneq\Ji vocal and deliberate ( Rahman v. Smith, 40 A.D3d 613, 835 NYS2d 404 [2d Dept., 2007]). In this cas~ the mere fact th~ plaintiff has admitted he agreed to furni~h funds to Weisz does not in any way mean he agreed to fund a down payment pursuant to an assigmnent agreement between Weisz andi Hagler. While the original complaint does state the funds were provided as a down payment for defendant 960 Franklin LLC thp.t allegation does not mention the. assignment agreeinerft at all. : Thus, the nature of the allegation contai.ne.d in the original complaint is vague .and hardly support~ a conclusory determination Kahah made an

Kahan's testimony in the action between W$isz and Kahan. First, the assignment agreement was never mentioned within Kahan's testimony. Thus, the absence of a:ny testi:imony about the assignment agreement is not an admission Kahan knew it existed. .. . . .. . . !

More importantly, there, is no evidence Kahan conceded Weisz did nothing wrong. Indeed, in Kahart'S motion! seeking summary judgement dismissing that; lawsuit Kahan states that following the deposit he made to the escro,w agent "Weis:z secretly entered into an assignment agreement which riot ortly provided for this time of the essence provision but additionally that the Venture's contract deposit-Kahan's contract depositl...would be forfeited if the Venture failed to raise the funds to purchase the option which the Assignors held ... Weisz never to~d his co-Venturer (to whom he owed a solemn fiduciary ;obligation) about this Agreement (He explained at his EBT simply that Kahap never asked! someone who owed his partner a fiduciary obligation)" (Memorandum of Law, page 7 [NYSCEF Doc. No. 37 of Index Numbe~ 524709/20231).

Clearly, Kahan harbors beliefs about Weis:z' s ni.i s representations.

Next, Hagler argues Kahan(s belief a~ further contract would .be entered into between the seller arid Ka~an/Weisz must be rej.ect.ed as patently absurd. Those argnm~nts are based upqn Kahan' s affidavit wherein he states that he gave funds to We.isz

(by wiring an escrow agent) and that those funds "would be released from the escrow account only with my prior authorization, and subject to the terms qf a contract acceptable to my lawyers" (see, Affirmation of Baim !Kahan, '![8 [NYSCEF Doc.

No. 211]). The speculation that Kahan aqted with ''no reason." is surely an insufficient basis upon which to conclude there are no questions of fact. It is true that no c9ntract was ever presented to Kahan for the purchase of ttie properties. However, the absence of any contract is not evidence, and surely not conclusive evidence, that Kahan was awar~ of the Hagler-Weisz assignment agreement. The defendant assumes that Kaha.n must have known about the assignment agreement. There is no evidence, other than innuendo, that :substantiates tihat argument.

Thus, as noted, Hagler assumes, without any proof, that Kahan was aware of the assignment agreem~nt and that by wiring funds to Weisz he became bbund by all the terms of the agreement.

In truth, Hagler' s argument rests on the :fact that Kahan must have known of the assignment agreement because otherwise he simply foolishly gave Weisz such large sums without knowing precisely how the money was being utilized. While that is certainly a reasonable opinion, it is not irrefutable proof.

Likewise, a: litigant cannot secure sumina~y judgement by arguing the other party's position is so outlandish that no jury could believe it i Thus, Hagler insists that 1'rio reasonable jury could

(see, Memorandum of Law, page 14 [NYSCEF poc. No. 269]). Summary judgement is not based upon such speculat~ve arguments. The mere fact one party really thinks the other paittY is being untruthful or one party avers the other party cannotj be truthful, no matter how insistent, are not grounds to award spmmary judgement.

In additi-on:, all of Hagler' s arguments att:e:mpting to connect Kall.an to knowledge of the assignment agreement i-s specious.

According to Hagler, the entire nature of: the transaction was based upon and rooted in the assignment agreement. The assignment agreement was the crux and central feature of thE= entire transaction. Yet, there is rio writing cir mention cif it to Kahan at all. Hagler's repeated attempts: to draw upon circumstantial evidence, allegations of K;al1an' s ridiculous positions and insinuation, all to connect Kahan to the assign.merit agreement, demonstrate there is no obviou!s and direct evidence of such knowledge. Surely the email sent by] Shia Weisz, which i t is arguec:l established a "contract" between W;eisz and Kahan should have mentioned this most critical and crulcial fact. Indeed, could there have- been a complet~ meeting bf the minds without that cruc.ial informa:tion? Tfle complete a:bsence of any evidence of the existence of the. assignment agreerrient only raises questions of fact whether :E<ah.an was aware; of it. Consequently,

Weisz's transactions, summary judgement c~nnot possibly be appropriate.

Moreover, regarding Kahan's statemen;ts he anticipated a contract of sale to be negotiated, there µ.s no conclusive evidence presented that Kahan never beliep:ed a contract would be negotiated. In this vein, almost all aff1davits (or affirmations') are self serving·. That does not affect their admissibility, but rather their weight (St. Pierre v. Dyer, 208 F3d 394 [2d Cir. 2000]). More importantly, the defendant's central argument in this regard is that the plaintiff is simply not credible ari.d nothing he says can raise que·stiohS of fact and surely his assertions are insufficient to: award summary judgement in his £avor. Hb0ever, the court, at thi~ stage, canhot make credibility determinations. As the court' noted in Payne v. Pauley, 337 F3d 7 67 [7 th Cir. 2003] seekir~g to dismiss affidavits cin the grounds of credibility, such action leads the court to ''dangerous territory, and we have warned ):)efore of falling for the trap of weighing conflicting evidence: during a summary judgment proceeding" {id). Thus, the court cannot "denigrate a plaintiff's. evidence when deciding whetheF a. material dispute requires tria:1" (Peterson v. Connecticut Light and Power Company,.

2014 WL 2615363 [District of Connecticut 2014]). Hagler argue.s

Further, Hagler maintains that Shiaw:eisz the son of Chesky Weisz submitted an affidavit and confirmed tha:t Kaha.n was fully aware Of the assignment agreement and consented to its terms.

Additionally, We,isz also has submitted af!fidavits qonfirrtting ' Kahan' s knowledge of the. assignment a9ree~ent. While those affidavits and testimonies are .relevant and surely rais:e

No. 211]). Again, in another affirmation Kahan stated regarding the assignment agreement that "I had . no idea l this . document . . . .

existed, was never a party to it, and it !cannot form the basis of any surrender of my rights to my awn mone;y, which I believed at the time was safely held in the Abrams Fenstermani LLP attorney Trust Account, where I wired iti' (see, Af;firmation of Haim Kahan, '][38 dated December 1, 2023 [NYSCEF Doc. N:o. 228] ) . Thus, the affirmations of Chesky and Shia Weisz con'flict with the a,ffidavit of Kahan. It is well settled that when c:onflicting affidavits are presented then summary judgement canhOt be granted (Lakeview Development at CarmeL LLC v. New York cfty Dept, of Environmental Protection, 139 AD3d 1016, :30 NYS3d 844 [2d Dept., 2016]) , Ne'xt, concerning the email sent by s!hia Weisz which Hagler alleges constitute.s a partners.hip agreeme;nt or a contract between Weisz and Kahan, notwithstanding credibil:ity arguments that have

Moreover, the lawsuit between Weisz !and Kahan only raises more questions than it answers. In that !lawsuit, Weisz sued Kahan alleging Kahan faiJ,ed to abide by the terms of the email agreement which created .a joint venture petween them. The complaint reiterates that Kahan was required to furnish twenty- five million dollars and the remaining b~enty million i:lollars would be. raised by them together, as noted. The complaint also alleges that Kahan sought to engage in a lbuy-out of Weisz' s interests arid furnished an additional twq million dollars but never furnished the, final payment of a m:i,llion doll.a rs. Weisz sued Kahan and se.eks damages in the arnoutjt of twenty .rniilion dqliars for failing to furnish thc:1.t. amount pursuant to the ' agreement. Whi.le that c1aim may not directly conflict with

Hagler's understanding of the transactions that were required to take place, there are surely questions of fact whether Weisz made ; two distinct promises, one to Kahan and ajnother to Hagler, Thus, pursuant to the "contractu between Kahan jand Weisz, Kahan was required to invest twenty million dollar.:,( Pursuant to the assignment agreement between Hagler ancl Wieisz, Weisz was merely required to invest ten million dollars. ]To be sure, if Kahan knew of the assignment agreement Kahan must have wondered why he was being asked to invest twenty million dollars when only ten million dollars was required to be furnished at the closing.

Thus, the email between Shia Weisz and Kahan compels a denial of any summary judgement request and surely !raises questions of fact whether Kahan was aware of the assignment agreement.

Next, Hagler argues the parties WE=re; "sophisticated/', an arbitrary label, thus Kahan was surely a~are of the assignment a'greetn.ent. That argument is undermined by the nature of the alleged contract enterE;d into between Kah:an and Weisz. The entire contract is in the form of an email from Weisz's son to Kahan. While the term ''sophisticated" may vary depending on the surrounding facts atrd circum:stances, thetie can be· little- doubt a ''contract;:, formed in this manner, regarding such a supstantial transaction:, is quite amateurish. Indeetj, Kahan has a.ought to dismiss the lawsuit Weisz filed against h.:i,m on the:se very grounqs.

Next, the exhibit that contains the copy of the assignment agreement (Exhibit 15 [NYSCEF ooc. No. 249] contains the agreement as part of an email from the escrowee agent to Weisz and other partie-s but hot Kahan. Even i£i it is true that Kahan was aware of the assignment agreement befpre he notified Hagler of his involvement, it d9es not establish' Kahan was aware of it when he depo.s_ited the funds, the only relfvant time frame that cart support any summary determination. It is really irrelevant when Kahah discovered its existence and when he chose to inform Hagler about his role in the down payment:. In any event, there is no evidence Kahan knew about the assignment agreement when he deposited the funds with the escrow agent:.

These arguments can a.11 be distilled! into one overarching theses, namely that Kahan knew about the assignme-nt agreement and must be bound by its terms. I t is true that if Kahan knew about the agreement and consented to its terms thereby, then he could have no greater rights than Weisz. Thus,! the default by Weisz would necessarily devolve upon Kahan as well and Kahan would have no claims against Hagler. Kahi::l.D does notj really dispute this point. Kahan presents two arguments in .r:esponse and in support of summary judgement in his favor.

First, Kahan argues thc1. t "without pr;iv i ty of contra ct, Def.endants have· no ba.sis what.soever to bi;nd Mr. Kahan to the terms of an Assignment Agreemen:t to which; he w~s not a party, or

Kahan also c1rgues that no contract eyen existed between him and Weisz. He argues that the email sent which is the basis of µny agreement between the two of them is insufficient to create obligations flowing between them. While that is the subject Of the other lawsuit, for purposes of this litigation, it is sufficient to note that there is no question that some form of agreement was entered into between Kahan and Weisz. Whether it has all the requiretuents to satisfy the e!],ements of a joint venture is beyond the scope of these moti:ons. The critical, and in fact, undisputed reality, is that Kaha:h and Weisz entered into sotne sort of arrangement, however that may be defined. Whether the assignment agreement entered into bet,ween Weisz and Hagler . ' can he. imputed to Kahan remains. a factual!' question. '

Conse:qµently, the court c;annot grant a1}y party summary j udgernent, Therefore, the motions seekir\g sti.rr\rnary jbdgerilent are

22·

Turning to the motion seeking discovery, in light of the above, the only discovery that is of any ,relevance is any information :concerning Kahan's knowledge of the existence of the assignment agreement. No other information is relevant at all.

Thus; the plaintiff must furnish any discovery in its possession, that has not yet been furnished, regarding Kahan's knowledge concerning the assignment agreement. In this regard, the plaintiff shall submit an affirma-tion, within thirty days of receipt of this order, that ail discovery:pertaining to his knowledge of the assignment agreement has;already been furnished and ~fter a diligent search there is no f9rther infor~atioh that must be prodm::ed. Thus, the motion seeking to compel aITly further discovery is granted to this extent.

so ordered.

ENTER:

DATED: January 6, 2025 Bt'oo klyrt N . Y. Hon. Leon Rµchelstri'in JSC