Motion-Secondary: Lash 68 Llc Aka Lash 68, Llc v. Interior Management, Llc, Sydney Wolfe Aka Syd Wolfe, Albert Martinez, Ulrike D. Martinez Marital Trust B, John Doe, Jane Doe

On April 03, 2023 a Motion-Secondary was filed involving a dispute between Lash 68 Llc Aka Lash 68, Llc, and Albert Martinez, Interior Management, Llc, Jane Doe, John Doe, Sydney Wolfe Aka Syd Wolfe, Ulrike D. Martinez Marital Trust B, for Commercial - Contract in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
LASH 68 LLC (a/k/a LASH 68, LLC),

Plaintiff, (LEBOVITS, J.)

-against-
INDEX NO. 651674/2023
INTERIOR MANAGEMENT, LLC, SYDNEY
WOLFE (a/k/a SYD WOLFE), ALBERT
MARTINEZ and ULRIKE D. MARTINEZ
MARITAL TRUST B, “JOHN DOE” and “JANE DOE”,

Defendants.
--------------------------------------------------------------------------X

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO
PLAINITFF’S APPLICATION FOR A PRELIMINARY INJUNCTION

MOSS & KALISH, PLLC
Attorneys for Defendants
122 East 42nd Street, Suite 2100
New York, New York 10168
(212) 867-4488

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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ......................................................................................................... iii

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................3

PROCEDURAL HISTORY.............................................................................................................4

ARGUMENT

I. Plaintiff Fails to Establish a Clear Right to the Drastic Remedy of a
Preliminary Injunction .........................................................................................................4

1. Lash 68 Does Not Establish A Likelihood Of Success On The Merits .......................5

A. Breach of Contract against IMI ........................................................................5

B. Conversion against IMI ....................................................................................6

C. Conversion against Individual Defendants.......................................................7

D. Fraud against All Defendants ...........................................................................9

E. Unjust Enrichment ............................................................................................9

F. Accounting .......................................................................................................9

G. Attorney’s Fees and Expenses ........................................................................10

H. Piercing the Corporate Veil ............................................................................10

2. Lash 68 Cannot Establish Irreparable Harm ..............................................................15

A. A Claim for Money Damages Does Not Constitute Irreparable Harm ..........15

B. The Injunctive Relief Sought by Lash 68 Against IMI is Moot .....................17

C. Lash 68’s Delay in Seeking Interim Relief Belies any Claim of
Irreparable Harm ............................................................................................18

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3. The Equities Do Not Balance In Favor of Lash 68 ....................................................18

II. Plaintiff is Not Entitled to a Mandatory Injunction ...........................................................19

III. Plaintiff is Not Entitled to an Attachment and a Levy on Defendants’ Assets ..................20

IV. The Court Should Deny the Request for Expedited Discovery .........................................22

CONCLUSION ..............................................................................................................................23

WORD COUNT CERTIFICATION .............................................................................................24

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TABLE OF AUTHORITIES
Page
Cases:

610 Park 8E LLC v. Best & Co., Inc.,
2018 N.Y. Misc. LEXIS 5739 (Sup. Ct. N.Y. Cty. December 5, 2018) ..................................6

Alayoff v. Alayoff,
112 A.D.3d 564, 976 N.Y.S.2d 530 (2d Dep't 2013) .............................................................16

Allen v. Zizzi Constr. Corp.,
2002 NYLJ LEXIS 2639 (Sup. Ct. N.Y. Cty. December 20, 2022
Index No. 654345/2015 ...................................................................................................14, 15

Art Capital Bermuda Ltd. v. Bank of N.T. Butterfield & Son Limited,
169 A.D.3d 426, 94 N.Y.S.3d 29 (1st Dept. 2019) ................................................................15

Asphalt Supply of Long Island LLC v. Suffolk Asphalt Corp.,
2020 N.Y. Misc. LEXIS 20427 (Sup. Ct. Suffolk Cty. August 7, 2020) ................................5

Asphalt Supply of Long Island v. Suffolk Paving Corp.,
2020 N.Y. Misc. LEXIS 20372 (Sup. Ct. Suffolk Cty. May 1, 2020),
rearg. denied, 2020 N.Y. Misc. LEXIS 20427 (August 7, 2020) ......................................3, 15

Chrysler Corp. v. Fedders Corp.,
63 A.D.2d 567 (1st Dept. 1978) .............................................................................................16

Computer Strategies, Inc. v. Commodore Bus. Machines,
105 A.D.2d 167 (2nd Dept. 1984) .........................................................................................21

Corsello v. Verizon New York, Inc.,
18 N.Y.3d 777, 944 N.Y.S.2d 732 (2012) ...............................................................................9

Ed Cia Corp. v. McCormack,
44 A.D.3d 991, 845 N.Y.S 2d 104 (2d Dep't 2007) ...............................................................16

Escabi v. Twins Contracting, LLC,
2022 N.Y. Misc. LEXIS 2282 (Sup. Ct. Bronx Cty. May 25, 2022) ...............................11, 13

Family-Friendly Media v. Recorder Tel. Network,
74 A.D.3d 738, 903 N.Y.S.2d 80 (2nd Dept. 2010) ..............................................................15

Fatima v. Twenty Seven-Twenty Four Realty Corp.,
65 A.D.3d 1079 (2d Dep't 2009) ............................................................................................16

iii

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Fesselha v. TD Waterhouse Inv. Services, Inc.,
305 A.D.2d 268 (1st Dept. 2003) .............................................................................................6

Floral Home Care, LLC v. Independence Care Sys., Inc.,
2019 N.Y. Misc. LEXIS 4137 (Sup. Ct. N.Y. Cty. July 24, 2019)..........................................5

Frampton v. Axiom Constr. Corp.,
2022 N.Y. Misc. LEXIS 5928 (Sup. Ct. Kings Cty. August 25, 2022) .........................6, 9, 10

Gater Assets Ltd. v. Moldovagaz,
2 F.4th 42 at 62 (2nd Cir. 2021).............................................................................................11

Genger v. Genger,
2010 NY Slip Op 33929(U) (Sup. Ct. N.Y. Cty. June 28, 2010) ..........................................16

Haiti v. Duvalier,
211 A.D.2d 379 (1st Dept. 1995) ...........................................................................................17

Hart v. Jassem,
443 A.D.3d 997, 843 N.Y.S.2d 121 (2nd Dept. 2007) ..........................................................10

K9Bytes, Inc. v. Arch Capital Funding, LLC,
2016 N.Y.Misc. LEXIS 5252 (Sup. Ct., Westchester County 2016) ....................................16

L-3 Communications v. Kelly,
36 A.D.3d 762, 829 N.Y.S.2d 568 (2nd Dept. 2007) ............................................................17

Ma v. Lien,
198 A.D.2d 186, 604 N.Y.S.2d 84 (1st Dept. 1993) ..............................................................16

Matos v. City of New York,
21 A.D.3d 936, 801 N.Y.S.2d 610 (2nd Dept. 2005) ......................................................15, 19

Medequa LLC v. O’Neill & Partners LLC,
2022 U.S. Dist. LEXIS 131915 (S.D.N.Y. July 25, 2022) ......................................................6

Michaels Elec. Supply Corp., v. Trott Elec., Inc.,
231 A.D.2d 695, 647 N.Y.S.2d 839 (2nd Dept. 1996) ..........................................................20

Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp.,
70 A.D.2d 1021, 418 N.Y.S.2d 216 (3rd Dept. 1979) ...........................................................18

Park Ins. Co. v. Dadex, Inc.,
2020 N.Y. Misc. LEXIS 2608 (Sup. Ct. N.Y. Cty. June 10, 2020) .......................................10

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Perez v. Wei Li,
37 Misc.3d 1213(A), 964 N.Y.S.2d 62
(Supreme Court, Queens County, 2012) ..........................................................................15, 17

Port Chester Electrical Constr. Corp. v. Atlas,
40 N.Y.2d 652, 369 N.Y.S.2d 327 (1976) .................................................................10, 11, 13

Rosenthal v. Rochester Button Co.,
148 A.D.2d 375, 539 N.Y.S.2d 11 (1st Dept. 1989) ..............................................................21

Rowland v. Dushin,
82 A.D.3d 738, 917 N.Y.S.2d 702 (2nd Dept. 2011) ............................................................15

Shake Shack Fulton St. Brooklyn, LLC v. Allied Pro. Group, LLC,
177 A.D.3d 924 (2nd Dept. 2019) .........................................................................................19

Sydney Wolfe, Albert Martinez and Ulrike D. Martinez Martial Trust B v.
Canaante LLC
Supreme Court New York Cty., Index No. 652009/2023......................................................14

Sylmark Holdings Ltd. v. Silicone Zone Int’l Ltd.,
5 Misc.3d 285, 783 N.Y.S.2d 758 (Sup. Ct. N.Y. Cty. 2004) ...................................20, 21, 22

TNS Holdings Inc. v. MKI Sec. Corp.,
92 N.Y.2d 335, 680 N.Y.S.2d 891 (1998) .......................................................................12, 14

W.T. Grant. Co. v. Srogi,
52 N.Y.2d 496, 438 N.Y.S.2d 761 (1981) ...............................................................................5

William Martinez v. Interior Management, LLC et al.
Sup. Ct. N.Y. Cty. Index No. 650610/2021 ...........................................................................12

Winters Bros. Recycling Corp. v. Jet Sanitation Serv. Corp.,
23 Misc.3d 1115(A), 2009 N.Y.Slip Op. 50753(U)
(Sup. Ct., Nassau County 2009).............................................................................................16

WZ USA, LLC v. United Rest. Group Intl. Inc.,
2019 N.Y. Misc. LEXIS 3930 (Sup. Ct. NY County 2019) ..................................................16

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Rules, Laws and Statutes:

CPLR 6201...............................................................................................................................20, 21

CPLR 6301.......................................................................................................................................4

CPLR 7109.....................................................................................................................................17

Lien Law Article 3-A ...........................................................................................................6, 16, 17

McLaughlin Practice Commentaries, McKinney's
Cons Laws of NY, Book 7B, CPLR 6201:4 ..........................................................................21

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
LASH 68 LLC (a/k/a LASH 68, LLC),

Plaintiff, (LEBOVITS, J.)

-against-
INDEX NO. 651674/2023
INTERIOR MANAGEMENT, LLC, SYDNEY
WOLFE (a/k/a SYD WOLFE), ALBERT
MARTINEZ and ULRIKE D. MARTINEZ
MARITAL TRUST B, “JOHN DOE” and “JANE DOE”,

Defendants.
--------------------------------------------------------------------------X

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S
APPLICATION FOR A PRELIMINARY INJUNCTION

PRELIMINARY STATEMENT

Defendants, Interior Management, LLC (“IMI”), Albert Martinez (“Martinez”) and Sydney

Wolfe (“Wolfe”) and Ulrike D. Martinez Marital Trust B (the “Trust”) submit this memorandum

of law in opposition to the application by the plaintiff, Lash 68 LLC (“Lash 68”), for a preliminary

injunction, an order of attachment and other relief. 1

By way of background, on or about July 11, 2022, Lash 68 and IMI entered into a contract

whereby IMI agreed to act as a construction manager of premises located at 11 East 68th Street

PHE, New York, New York 10065 (the “Project”). The Contract is comprised of various

documents, known as the “Contract Documents”) and collectively as the “Contract”). Defendant

Wolfe signed the Contract, on behalf of IMI, at page 12. Below his signature appear the typewritten

words:

Syd Wolfe President.

1
Wolfe, Martinez and the Trust are referred to collectively herein as “the individual defendants.”

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The work was primarily to be done in the kitchen, butler’s pantry, bathroom and dressing

room of the premises.

Until recently, IMI, which was founded in 2015, and a predecessor business (founded in

1997) were engaged in conducting interior renovations and construction, primarily of high-end

residences, in the New York City area. Unfortunately, as a result of COVID-19, supply chain

issues, and labor and material costs inflation and disruption, IMI was forced, after approximately

twenty-five years in business (inclusive of its predecessor business), to close this year and cease

operations.

In its complaint, Lash 68 alleges that it paid IMI a total sum of $639,812.78 to perform

work in connection with the Project. Lash 68 alleges that only approximately $81,069.99 of the

payments were applied to subcontractors or for construction materials. Lash 68 alleges that the

sum of $558,742.79 was misappropriated by the defendants.

Lash 68 by its application for immediate injunctive relief seeks an order:

a. (1) requiring IMI and/or its manages to deposit the sum of $558,742.79 with the Court,

(2) prohibiting Defendants from dispersing any funds from their bank accounts(s) until and

unless IMI and/or its Managers have posted security with the Court and (iii) prohibiting

Defendants from disposing of or transferring any construction material relating to a construction

project at 11 East 68th Street, PHE, New York, New York;

(b) in the event branch (a) is not granted, then, in such event, granting an order of

attachment in the amount of $558,742.79 and permitting the sheriff and/or marshal to attach

and/or levy Defendants’ property or assets; and

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Lash 68’s application for immediate injunctive relief should be denied in its entirety on

the following grounds: (1) plaintiff cannot establish a clear right to the drastic remedy of a

preliminary injunction; (2) there are no unique circumstances required for the granting of a

mandatory injunction; and (3) plaintiff’s unwarranted delay in seeking this relief that

demonstrates that it is unnecessary.

Indeed, in Asphalt Supply of Long Island v. Suffolk Paving Corp., 2020 N.Y. Misc.

LEXIS 20372 (Sup. Ct. Suffolk Cty. May 1, 2020), rearg. denied, 2020 N.Y. Misc. LEXIS

20427 (August 7, 2020), an action which dealt with allegations of Lien Law Trust fund

violations, the Court denied an application for injunctive relief on the ground that, as in the

matter at bar, there was no irreparable harm. Defendants submit that the reasoning in that case

compels the denial of plaintiff’s order to show cause in its entirety.

Lash 68 is not entitled to the “harsh remedy” of an order of attachment. It utterly fails to

satisfy the requirements for such provisional relief.

Lastly, while Lash 68 may be entitled to discovery in the ordinary course, it is simply not

possible for IMI to produce all of the discovery sought by Lash 68 within seven days after the

return date of this order to show cause, particularly given that IMI is out of business and has no

employees. Nor has Lash 68 shown any emergent need for such expedited discovery and in fact

none exists.

STATEMENT OF FACTS

The Court is respectfully referred to the affidavits of Martinez, sworn to June 20, 2023

(the “Martinez aff.”) and Wolfe, sworn to June 20, 2023 (the “Wolfe aff.”), for a recitation of

the facts of this matter. David Gelfarb, Esq., attorney for defendants, has submitted an

affirmation, dated June 20, 2023, for the purpose of introducing certain documents to the Court.

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PROCEDURAL HISTORY

Lash 68 filed its summons and complaint with the Court on April 3, 2023. The complaint

interposes eight causes of action. The first is for breach of contract against IMI. The second is

for conversion against IMI. The third is for conversion against the so-called “Managers” (the

Individual Defendants are referred to in the moving papers and the complaint as “Managers”).

The fourth cause of action is for fraud. The fifth cause of action is for unjust enrichment against

all defendants. The sixth cause of action is for an accounting against all defendants. The seventh,

for attorney’s fees, is against IMI. The eighth cause of action is for piercing the corporate veil

(as we discuss later, there is no independent cause of action for piercing the corporate veil).

Defendants answered the complaint on May 11, 2023.

Plaintiffs filed their order to show cause, with an application for a temporary restraining

order, on June 7, 2023. On June 9, 2023, following oral argument, the Court granted a temporary

restraining order directing that “[u]ntil this matter is argued, defendants may not: (i) dispose or

transfer any of the Construction Materials; nor (ii) disburse any funds from any bank account(s)

under their individual or corporate control. The sole exception to the bar on disbursement of funds

is for the individual defendants to pay for daily necessities of life (food, toiletries, and the like);

and that defendants must keep detailed records of any such payments and be prepared to produce

those records to plaintiff and to the Court.”

ARGUMENT

I. Plaintiff Fails to Establish a Clear Right to the
Drastic Remedy of a Preliminary Injunction

Pursuant to CPLR 6301, a preliminary injunction “may be granted 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

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violation of the plaintiff's rights respecting the subject of the action, and tending to render the

judgment ineffectual. . . .”

In other words, “a preliminary injunction may be granted only if the movant demonstrates

"(1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the

provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor."

Floral Home Care, LLC v. Independence Care Sys., Inc., 2019 N.Y. Misc. LEXIS 4137 at *2 (Sup.

Ct. N.Y. Cty. July 24, 2019) (Lebovits, J.), quoting W.T. Grant. Co. v. Srogi, 52 N.Y.2d 496, 517,

438 N.Y.S.2d 761 (1981).

Further, “the decision whether to grant a preliminary injunction rests in the sound

discretion of the Supreme Court. . . . The movant has the burden of establishing a right to this

equitable remedy. . . . A plaintiff has not suffered irreparable harm warranting injunctive relief

where its alleged injuries are compensable by money damages.” Asphalt Supply of Long Island

LLC v. Suffolk Asphalt Corp., 2020 N.Y. Misc. LEXIS 20427 at *6 (Sup. Ct. Suffolk Cty.

August 7, 2020) (internal quotes and cites omitted).

Plaintiff fails to meet its burden of establishing each and every element required for the

issuance of a preliminary injunction, particularly the key element of irreparable harm.

1. Lash 68 Does Not Establish A Likelihood Of Success On The Merits

Plaintiff has interposed eight causes of action. However, it actually states a claim (much

less establishes a likelihood of success on the merits) as to only one cause of action.

A. Breach of Contract against IMI

Lash 68’s first cause of action is for breach of contract as to IMI. Irrespective of whether

Lash 68 can establish a likelihood of success on the merits, the claim is for money damages and

no injunction should be granted with respect to that claim (and as we further discuss, the demand

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for injunctive relief is moot as to IMI anyway). Further, as we discuss infra under the eighth

cause of action at “H”, assuming that plaintiff even pleads some kind of claim for breach of

contract against the Individual Defendants under a theory of piercing the corporate veil, it has not

established a likelihood of success on the merits.

B. Conversion against IMI

Lash 68’s second cause of action, against IMI, is for conversion. 2 The claim is plainly

duplicative of the breach of contract claim. See Frampton v. Axiom Constr. Corp., 2022 N.Y.

Misc. LEXIS 5928 (Sup. Ct. Kings Cty. August 25, 2022) (Court found, in case alleging violation

of Lien Law Article 3-A, that “where a conversion claim arises from the same circumstances as

the breach of contract claim then such conversion claim is duplicative”) (citation to cited authority

omitted); 610 Park 8E LLC v. Best & Co., Inc., 2018 N.Y. Misc. LEXIS 5739 *3-4 (Sup. Ct. N.Y.

Cty. December 5, 2018), citing Fesselha v. TD Waterhouse Inv. Services, Inc., 305 A.D.2d 268,

269 (1st Dept. 2003) “([t]he First Department has held that a cause of action for conversion cannot

be predicated on a mere breach of contract”).

In Frampton, the Court found that the “breach of contract claim essentially asserts the

defendants owe the plaintiff a refund for money the plaintiff paid wherein no work had been

performed by the defendants. The conversion claim seeks a return of funds the plaintiff gave to

the defendants in anticipation of the work being performed.” Frampton, id. at *6. The Court

dismissed the conversion claim. Id. at *7. See also Medequa LLC v. O’Neill & Partners LLC,

2022 U.S. Dist. LEXIS 131915 at *18 (S.D.N.Y. July 25, 2022) (“in New York a conversion

claim may not be maintained where damages are merely sought for a breach of contract. . . . if

2
The second and third causes of action, at paragraphs 56 through 72 of the Complaint, never mention Article 3-A of
the Lien Law or allege violation of any section of the Lien Law. These two claims clearly are for common law
conversion.

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plaintiff were to recover on each claim, it would in effect be paid twice”) (citation to cited

authority and internal quotes omitted). Here, the conversion claim plainly arises from the same

circumstances as the breach of contract claim. Accordingly, there is no likelihood of success on

the merits of this claim.

C. Conversion against Individual Defendants

The foregoing analysis is true of the third cause of action. Moreover, the Individual

Defendants adamantly deny having converted these funds or that they were used for their

personal benefit. Notably, the claim for conversion against the Individual Defendants is made

upon “information and belief.” As Wolfe and Martinez set forth in their affidavits, they deny

having converted the funds paid by Lash 68. They specifically deny that the funds were

“dispersed to them” or having diverted construction materials for their own use. (Complaint

¶67).

They also strenuously deny that the requests for additional payments were for the purpose

of “eliciting money for their own gain.” (Complaint ¶69). In his affidavit, Wolfe sets forth how

the amounts requested were arrived at.

The Contract Price was $1,717,750.40. Lash 68 made 3 payments constituting the

deposit.

$171,775.04
$106,500.53
$108,218.28
$386,493.85

This amount is 22.5 percent of the Contract Price. The difference between the 25 percent

(per Contract ¶4.1) and the 22.5 percent is retainage. IMI had previously done a project (at 21

East 61st Street) with the principal of Lash 68 and it was thus understood that the deposit

requirement was 25 percent.

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On January 4, 2023, Lash 68 paid an additional $253,318.94 to IMI. The method for

determining this amount is set forth on AIA Document G702 (Application and Certification for

Payment) No. 4 (Wolfe aff. Ex. “A”). Accordingly, the total amount paid was $639,812.79.

Much of the funds beyond the 25 percent payment (actually 22.5 percent due to retainage)

of $386,493.85 were in the nature of deposits. IMI did not request the deposits so that Wolfe and

Martinez could abscond with them. In fact, as a result of unexpected conditions, the work was

slowed down and more would have been carried out if these unexpected conditions were not

encountered. As just one example, the Project was delayed in starting because the principal of Lash

68 (Ms. Liane Ginsburg) insisted on living in the apartment for a longer period than was expected.

Further, the kitchen was not ready for work because the cabinets were not delivered on schedule.

There were also delays in obtaining approval from the building for the work, and then from the

New York City Department of Buildings (the “DOB”) (particularly for the bathroom and dressing

room). In fact, as Wolfe states in his affidavit, to this day there has been no DOB approval for the

bathroom work.

Further, as Wolfe explains, the amount of alleged damages is exaggerated (and as Wolfe

states, the person who submitted the estimate of damages, Joshua Barba-Hill, a designer (i.e.

interior decorator) is not even qualified to make such an estimate.

Defendants understand that Lash 68 alleges that only $81,069.99 was paid to

subcontractors or for materials. That issue will be dealt with during litigation. However, IMI

submits that it is entitled to the monies it was paid, as is set forth on Payment Application No. 4

(Wolfe aff. Ex. “B”) in the categories of General Requirements (Item No 01) (project management,

site supervision, temporary facilities and construction, protection and site cleaning and carting as

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well as Financials (Item No 46) (general conditions, fees and insurance). This amount totaled over

$118,000 through Payment App No. 4.

Wolfe also contends that IMI is entitled to at least $22,000 more for General

Requirements and Financials as is forth in payment application 5(Revised).

Based upon the foregoing, as well as the Wolfe and Martinez affs., Lash 68 has not

established a likelihood of success on any claim against the individual defendants for conversion

(and, of course, the claim is barred as duplicative of the breach of contract claim).

D. Fraud against All Defendants

The fourth cause of action is for fraud. We note that plaintiff does not address the fraud

cause of action in its memorandum of law. If, as and when the fraud claim is litigated, defendants

will argue that it should be dismissed as duplicative of the breach of contract claim. Given that

plaintiff does not address this claim in its memorandum of law, we will not further address it at

this time.

E. Unjust Enrichment

Plaintiff does not establish a likelihood of success on the fifth cause of action, for unjust

enrichment. “It is well settled that a claim of unjust enrichment is not available when it duplicates

or replaces a conventional contract or tort claim.” Frampton, 2022 N.Y. Misc. LEXIS 5298 at *8,

citing Corsello v. Verizon New York, Inc., 18 N.Y.3d 777, 944 N.Y.S.2d 732 (2012). Given that

plaintiff does not address this claim in its memorandum of law, we will not further address it.

F. Accounting

There is no likelihood of success on the sixth cause of action for an accounting. Put

simply, “the right to an accounting is premised upon the existence of a confidential or fiduciary

relationship and a breach of the duty imposed by that relationship respecting property in which

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the party seeking the accounting has an interest.” Frampton, 2022 N.Y. Misc. LEXIS 5928 at *8.

Given that plaintiff does not address this claim in its memorandum of law, we will not further

address it.

G. Attorney’s Fees and Expenses

The seventh cause of action is for attorney’s fees and expenses. The claim is frivolous.

Plaintiff cites paragraph 8.12 of the Contract as the basis for the claim. However, that provision

provides that IMI must indemnify Lash 68 in the event of personal injury, death or property

damage claims. Plaintiff ignores this cause of action and we will not further address it.

H. Piercing the Corporate Veil

The eighth and final cause of action is for piercing the corporate veil. Initially, it is

hornbook law in New York that there is no cause of action for piercing the corporate veil. Hart v.

Jassem, 443 A.D.3d 997, 998, 843 N.Y.S.2d 121 (2nd Dept. 2007) (in dismissing claim, Court held

that New York “does not recognize a separate cause of action to pierce the corporate veil”) (citation

to cited and quoted authority omitted); Park Ins. Co. v. Dadex, Inc., 2020 N.Y. Misc. LEXIS 2608

at *5 (Sup. Ct. N.Y. Cty. June 10, 2020) (“[p]iercing the corporate veil is a theory of liability, not

a valid claim in its own right.”

Assuming, arguendo, that Lash 68 properly pled a cause of action for breach of contract

(first cause of action of the Complaint), it has not established a likelihood of success on the merits

of a claim for veil-piercing. Corporations “are legal entities distinct from their managers and

shareholders and have an independent legal existence. Ordinarily, their separate personalities

cannot be disregarded.” Port Chester Electrical Constr. Corp. v. Atlas, 40 N.Y.2d 652, 656, 369

N.Y.S.2d 327 (1976). With respect to piercing of the corporate veil, the determinative factor is

whether "the corporation is a 'dummy' for its individual stockholders who are in reality carrying on

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the business in their personal capacities for purely personal rather than corporate ends.” Port

Chester Electrical, 40 N.Y.2d at 657. In other words, the “corporate veil will only be pierced when

an individual shareholder uses the corporation to conduct personal business in order to shield

himself from liability.” Escabi v. Twins Contracting, LLC, 2022 N.Y. Misc. LEXIS 2282 at *82

(Sup. Ct. Bronx Cty. May 25, 2022), citing Port Chester Electrical, 40 N.Y.2d at 657.

Preliminarily, Wolfe and Martinez deny that they are owners of IMI. The only

owner is the Trust.

In any event, IMI clearly was not a dummy for Wolfe or Martinez them to carry on the

business in their personal capacity for purely personal rather than corporate ends.

In fact, IMI was engaged in the high end residential construction business for decades. As

such, it had numerous employees, subcontractors, vendors, contracts, customers, etc. Indeed, IMI

performed jobs for many highly successful, very prominent people. IMI was the farthest thing from

a “dummy” corporation. It was not used to conduct the personal business of Martinez or Wolfe,

much less the Trust, which had nothing to do with the operation of the business (and nor has Lash

68 presented any evidence that the Trust had any connection with the operation of the business).

As just one example, in 2022 IMI entered into a contract to renovate an apartment at a cost of over

17 million dollars. In 2019, IMI entered into a contract to renovate a residence, that, with change

orders, has a value of over 34 million dollars.

There is no evidence that IMI was undercapitalized “for the purpose of evading its

creditors”, much less that it was undercapitalized when it was formed.” Gater Assets Ltd. v.

Moldovagaz, 2 F.4th 42 at 62 (2nd Cir. 2021). In fact, on the last business day (January 3, 2023)

before Lash 68 sent its final payment of $253,318.94 to IMI, IMI had a closing balance in its Chase

operating account of $96,787.96. (Wolfe aff. exhibit “D”).

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Indeed, annexed hereto as Exhibit “E” to the Wolfe aff. is a copy of the check register for

IMI for the period September 30, 2022 through March 30, 2023. The check register depicts page

after page of legitimate business expenditures, and is submitted to refute any claim that Wolfe or

Martinez absconded or ran away with Lash 68’s money, or did not operate a legitimate business.3

IMI was formed to engage in a legal business, and engaged in it for decades before

business reverses forced it to close down. An “inference of abuse does not arise from this record

where a corporation was formed for legal purpose or is engaged in legitimate business.” TNS

Holdings Inc. v. MKI Sec. Corp., 92 N.Y.2d 335, 339, 680 N.Y.S.2d 891, 893 (1998).

Lash 68 addresses, at pages 18-19 of its brief, and at paragraphs 106-110 of its complaint,

certain allegations made in the action of William Martinez v. Interior Management, LLC et al.

(Sup. Ct. N.Y. Cty. Index No. 650610/2021) (the “Will Martinez action). The Will Martinez action

was brought by a disgruntled former employee who claims to be a member of IMI. In particular,

Lash 68 has submitted an affidavit by Will Martinez (Exhibit “F” to the moving affidavit of Brian

Bendy, Esq., atto

Case Info

Judge

Gerald Lebovits Track Judge’s New Case

Case No.

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Document Filed Date

June 20, 2023

Case Filing Date

April 03, 2023

County

Parties

Albert Martinez Defendant
BENDY, BRIAN ROBERT Attorney for the Plaintiff
GELFARB, DAVID B. Attorney for the Defendant
GOLDMAN, JEFFREY L. Attorney for the Plaintiff
INTERIOR MANAGEMENT, LLC Defendant
Jane Doe Defendant
John Doe Defendant
KALISH, MARK LEO Attorney for the Defendant
LASH 68 LLC aka LASH 68, LLC Plaintiff
SCHWARTZMAN, JAMES Attorney for the Defendant
Sydney Wolfe aka syd wolfe Defendant
ULRIKE D. MARTINEZ MARITAL TRUST B Defendant
BIAT MADERER Attorney
ALBENA PETRAKOV Attorneys for Plaintiffs
ALAN BENNETT Attorney
GARY MOSS Attorney

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Motion-Secondary: Lash 68 Llc Aka Lash 68, Llc v. Interior Management, Llc, Sydney Wolfe Aka Syd Wolfe, Albert Martinez, Ulrike D. Martinez Marital Trust B, John Doe, Jane Doe

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