Motion for Writ in Arizona Rock Llc, Liberty Park Capital Llc v. East Hudson Capital Llc, Gfe Ny Llc dba GLOBAL FUNDING EXPERTS dba GLOBAL FUNDING EXPERTS NY dba GFENY, Moneyli Llc, Success Capital Llc, White Road Capital Llc dba GFE HOLDINGS, Queens Plaza Capital Llc, Standard & Co Li, Llc, Boris Musheyev, Rodshel Musheyev, Viacheslav Eliyayev, Oldfeld, Ltd AS TRUSTEE OF THE FSDJSB 888 TRUST| Trellis.Law

On June 20, 2023 a Motion-Secondary was filed involving a dispute between Arizona Rock Llc, Liberty Park Capital Llc, and Boris Musheyev, East Hudson Capital Llc, Gfe Ny Llc Dba Global Funding Experts Dba Global Funding Experts Ny Dba Gfeny, Moneyli Llc, Oldfeld, Ltd As Trustee Of The Fsdjsb 888 Trust, Queens Plaza Capital Llc, Rodshel Musheyev, Standard & Co Li, Llc, Success Capital Llc, Viacheslav Eliyayev, White Road Capital Llc Dba Gfe Holdings, for Commercial - Contract - Commercial Division in the District Court of Queens County.

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FILED: QUEENS COUNTY CLERK 12/29/2023 03:26 PM INDEX NO. 712757/2023
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/29/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS, COMMERCIAL DIVISION
-------------------------------------------------------------------------- x
:
ARIZONA ROCK LLC and LIBERTY PARK :
CAPITAL LLC, :
:
Plaintiffs, : Index No. 712757/2023
: Comm. Div. Part C (Risi, J.)
-against- :
: Motion Seq. No. 006
EAST HUDSON CAPITAL LLC, GFE NY, LLC DBA :
GLOBAL FUNDING EXPERTS DBA GLOBAL :
FUNDING EXPERTS NY DBA GFENY, MONEYLI :
LLC, SUCCESS CAPITAL LLC, WHITE ROAD :
CAPITAL LLC DBA GFE HOLDINGS, QUEENS :
PLAZA CAPITAL LLC, STANDARD & CO LI, LLC :
BORIS MUSHEYEV, RODSHEL MUSHEYEV, :
VIACHESLAV ELIYAYEV AND OLDFELD, LTD :
AS TRUSTEE OF THE FSDJSB 888 TRUST, :
:
Defendants. :
-------------------------------------------------------------------------- x

DEFENDANT OLDFELD, LTD’S REPLY TO
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT OLDFELD, LTD’S MOTION TO DISMISS COMPLAINT FOR LACK
OF PERSONAL JURISDICTION AND FAILURE TO STATE A CAUSE OF ACTION

Mallory A. Sullivan
Juan C. Zorrilla
FOWLER WHITE BURNETT, P.A.
Brickell Arch, Fourteenth Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-9200
Facsimile: (305) 789-9201

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TABLE OF CONTENTS

Page
I. LACK OF PERSONAL JURISDICTION.......................................................................... 1

A. THE COURT DOES NOT HAVE PERSONAL JURISDICTION
OVER OLDFELD PURSUANT TO CPLR § 302(a)(1). ....................................... 1

B. THE COURT DOES NOT HAVE PERSONAL JURISDICTION
OVER OLDFELD PURSUANT TO CPLR § 302(a)(2). ....................................... 3

C. THE COURT DOES NOT HAVE PERSONAL JURISDICTION
OVER OLDFELD PURSUANT TO CPLR § 302(a)(3)(i-ii)................................. 4

D. “SUFFICIENT START” AND “FORUM NON CONVENIENS”
DECISIONS THAT PLAINTIFFS RELY ON ARE
DISTINGUISHABLE............................................................................................. 6

II. FAILURE TO STATE A CAUSE OF ACTION................................................................ 8

A. COUNT 3 DOES NOT STATE A CLAIM FOR REPLEVIN
AGAINST OLDFELD............................................................................................ 8

B. COUNT 4 DOES NOT STATE CLAIMS FOR A TEMPORARY
RESTRAINING ORDER AND INJUNCTIVE RELIEF
AGAINST OLDFELD............................................................................................ 9

C. COUNT 5 DOES NOT STATE A DECLARATORY
JUDGMENT CLAIM AGAINST OLDFELD. .................................................... 10

D. COUNT 6 DOES NOT STATE A CONVERSION CLAIM
AGAINST OLDFELD.......................................................................................... 10

III. CONCLUSION................................................................................................................. 11

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TABLE OF AUTHORITIES

Cases

Associated Trade Development, Inc. v. Condor Lines, Inc.,
590 F.Supp. 525 (S.D.N.Y. 1984)........................................................................................... 3, 4

Atwal v. iFinex Inc.,
2023 WL 3063450 (W.D.N.Y. Mar. 22, 2023)........................................................................... 4

Chemical Bank v. World Hockey Assn.,
403 F.Supp. 1374 (S.D.N.Y. 1975)......................................................................................... 3, 4

Deleon v. Charlie Auto Sales, Inc.,
61 Misc.3d 1216(A), 110 N.Y.S.3d 899 (N.Y. Civ. Ct. Nov. 2, 2018) ...................................... 9

Friedr Zoellner (New York) Corp. v. Tex Metals Co.,
278 F.Supp. 52 (S.D.N.Y. 1967)............................................................................................. 3, 5

Matter of New York Asbestos Litig.,
212 A.D.3d 584, 182 N.Y.S.3d 100 (1st Dept. Jan. 31, 2023) ................................................... 6

Moser v. Boatman,
392 F. Supp. 270 (E.D.N.Y. 1975) ............................................................................................. 4

National Car Rental Sys. v. La Concorde Compagnie D’Assurance,
283 A.D.2d 249, 726 N.Y.S.2d 620 (2nd Dept. 2013) ............................................................... 8

New World Sourcing Group, Inc. v. SGS SA,
867 N.Y.S. 376, 20 Misc.3d 1122(A) (Sup. Ct. June 24, 2008) ................................................. 5

Olivo v. Medvedeva,
80 Misc.3d 742, 2022 WL 20380958 (Civ. Ct. N.Y. Nov. 30, 2022) ........................................ 9

Popper v. Podhragy,
48 F.Supp.2d 268 (S.D.N.Y.1998).......................................................................................... 3, 4

Security National Bank v. Ubex Corp., Ltd.,
404 F.Supp. 471 (S.D.N.Y. 1975)....................................................................................... 3, 4, 5

Seevers v. Tang,
268 A.D.2d 249 (1st Dept. 2000)................................................................................................ 3

Shaps v. D.F.D.S.,
No. 83 CIV. 8091(CBM), 1985 WL 269 (S.D.N.Y. Feb. 13, 1985) .......................................... 7

Shubin v. Slate Digital, Inc.,
No. 21 CIV. 9464 (PAE), 2022 WL 168152 (S.D.N.Y. Jan. 19, 2022) ................................... 10

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SOS Capital v Recycling Paper Partners of PA, LLC,
220 A.D.3d 25, 196 N.Y.S.3d 382 (1st Dept. Aug. 31, 2023).................................................... 6

Spencer Laminating Corp. v. Denby,
5 Misc.3d 200, 783 N.Y.S.2d 220 (Sup.Ct., N.Y. County 2004) ............................................... 7

Stein Fibers, Ltd. v. Bondex Telas Sin Tejar,
No. 1:08CV210LEK/DRH, 2009 WL 385412 (N.D.N.Y. Feb. 10, 2009) ............................. 3, 4

Tri-State Judicial Services v. Markowitz,
624 F.Supp. 925 (E.D.N.Y. 1985) .......................................................................................... 3, 4

Rules

CPLR § 302.............................................................................................................................passim

CPLR § 3211................................................................................................................................... 1

iii

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Defendant OLDFELD, LTD, as Trustee of the FSDJSB 888 Trust (“OLDFELD”), by and

through undersigned counsel and pursuant to New York’s CPLR §§ 3211(a)(7) and (8), files this

Reply to Plaintiffs’ Memorandum of Law in Opposition to Defendant OLDFELD’s Motion to

Dismiss the Complaint for Lack of Personal Jurisdiction and Failure to State a Cause of Action,

and states as follows:

I. LACK OF PERSONAL JURISDICTION

OLDFELD should, first and foremost, be dismissed from this lawsuit based on the

complete absence of personal jurisdiction over OLDFELD within the limited parameters of CPLR

§ 302(a)(1), (2) and (3).

A. THE COURT DOES NOT HAVE PERSONAL JURISDICTION OVER OLDFELD
PURSUANT TO CPLR § 302(a)(1).

Nothing within the four corners of Plaintiffs’ Complaint or the conclusory and factually-

baseless Affirmation of their attorney Evan M. Newman triggers this Court’s ability to exercise

CPLR § 302(a)(1) personal jurisdiction over OLDFELD.

The fact that OLDFELD “solely acts as Trustee” of the FSDJSB 888 Trust that owns a

portion of the “owner-membership interests” in East Hudson Capital, LLC (“EHC”) for the

exclusive benefit of stipulated family member beneficiaries [Exhibit 1 – Nov. 5, 2023 Affirmation

of Stuart Hamon: p. 1, ¶¶ 2, 4; Exhibit 2 – Dec. 28, 2023 Affirmation of Stuart Hamon: p. 1, ¶ 2;

p. 2, ¶ 5], does not confer this Court in New York with § 302(a)(1) personal jurisdiction over

OLDFELD, which Plaintiffs concede “is a law firm established under the laws of the United

Kingdom [England] with offices in London and Herefordshire, England.” [Comp. (NYSCEF

Doc No. 1): p. 5 – ¶ 17 (emphasis added)]. To hold otherwise, and thus adopt Plaintiffs’ self-

serving and legally and factually unsupported contrary contention, would automatically subject

anyone who owns stock in a domestic corporation to the personal jurisdiction of the state where

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that corporation does business and effectively abrogate the carefully drafted requirements of all 50

states’ Long-Arm Statutes.

Additionally, Plaintiffs’ conclusory and factually baseless representations that OLDFELD

operates EHC’s business in New York is resoundingly rebutted and refuted by Stuart Hamon’s

December 28, 2023 Affirmation. [Exhibit 2]. Pursuant to Mr. Hamon’s said Affirmation,

OLDFELD “does not conduct” EHC’s business in New York; OLDFELD “conducts no business

whatsoever for EHC”; and OLDFELD “does not operate the business of EHC.” [Exhibit 2: p. 1,

¶ 3 (emphasis added); p. 2, ¶ 5 (emphasis added)].

The management of EHC’s business is, instead, “solely carried out by EHC’s Board of

Members.” [Exhibit 2: p. 2, ¶ 4 (emphasis added)]. Similarly, the “operation” of EHC’s business

and “all corporate decisions rest with a Board of Members who hold either direct voting rights or

voting proxies.” [Exhibit 2: p. 2, ¶ 5]. OLDFELD is not, very importantly, “the LLC Manager of

EHC” or “a member of the Board of Members of EHC.” [Exhibit 2: p. 2, ¶ 4]. “EHC operates via

a formal Operating Agreement which vests significant decision making capacity in the strong

manager of EHC, Rodshel Musheyev.” [Exhibit 2: p. 2, ¶ 6].

Moreover, OLDFELD does not have signatory authority for any bank account held in

EHC’s name. [Exhibit 2: p. 2, ¶ 6]. EHC’s banking is conducted in New York through its New

York based LLC Manager and its Chief Financial Officer and their staff. [Exhibit 2: p. 2, ¶ 6].

Simply put, OLDFELD conducts all of its at-issue Trust business activities exclusively

from the United Kingdom and OLDFELD does not transact any business in New York, much less

any business for EHC that would subject OLDFELD to personal jurisdiction in New York under

CPLR § 302(a)(1). [Exhibits 1, 2]. Plaintiffs have, stated differently, fatally failed to provide this

Court with any sworn facts or record evidence corroborating Plaintiffs’ conclusory and baseless

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representations and establishing that OLDFELD actually has the asserted “clear and purposeful

business presence” in New York. [Doc. No. 68: p. 9]. This Court therefore does not have Section

302(a)(1) personal jurisdiction over OLDFELD and Plaintiffs’ Complaint should be dismissed for

that reason.

B. THE COURT DOES NOT HAVE PERSONAL JURISDICTION OVER OLDFELD
PURSUANT TO CPLR § 302(a)(2).

The only tort which Plaintiffs remotely contend OLDFELD committed in New York is that

of conversion relative to the Collateral/Converted Shares ultimately transferred to the Grand

Cayman FSDJSB 888 Trust which OLDFELD formed, administers, and controls. 1 However, what

Plaintiffs conveniently ignore and blatantly disregard is New York’s well-established legal

precedent holding that the conversion tort is only committed where the defendant was located at

the time. 2 Since OLDFELD is, without dispute, “a law firm established under the laws of the

1There is not a scintilla of evidence supporting Plaintiffs’ accusation in their Response
Memorandum that OLDFELD and Mr. Hamon “knew or should have known that the Converted
Shares were improperly acquired” in New York, transferred to the Trust, and that OLDFELD and
Mr. Hamon “thereby exercis[ed] improper control over the Converted Shares.” [Doc. No. 68: p.
10].
2 See, e.g., Stein Fibers, Ltd. v. Bondex Telas Sin Tejar, No. 1:08CV210LEK/DRH, 2009
WL 385412, at *5 (N.D.N.Y. Feb. 10, 2009) (“[T]he Plaintiff has not alleged that the Defendants
were physically present in New York when they committed the alleged wrongful acts. Thus, the
Court cannot exercise jurisdiction over the Defendants pursuant to CPLR § 302(a)(2).”); Popper
v. Podhragy, 48 F.Supp.2d 268, 272 (S.D.N.Y.1998) (conversion of trust property occurred in
either Austria where trust executor took possession or England where trust executor attempted to
sell it, but not New York); Tri-State Judicial Services v. Markowitz, 624 F.Supp. 925, 929
(E.D.N.Y. 1985) (alleged conversion by Florida defendant “could only be in Florida”); Associated
Trade Development, Inc. v. Condor Lines, Inc., 590 F.Supp. 525, 528 (S.D.N.Y. 1984) (Maryland
corporation’s alleged act of conversion “was committed in Maryland where the monies collected
were allegedly retained”); Security National Bank v. Ubex Corp., Ltd., 404 F.Supp. 471, 473
(S.D.N.Y. 1975) (Texas bank’s alleged conversion of funds occurred “in Texas, not in New
York”); Chemical Bank v. World Hockey Assn., 403 F.Supp. 1374, 1380 (S.D.N.Y. 1975) (acts of
conversion by defendants located in Maryland “were committed in Maryland”); Friedr Zoellner
(New York) Corp. v. Tex Metals Co., 278 F.Supp. 52, 56 (S.D.N.Y. 1967) (conversion of goods as
a result of Texas company’s failure to ship them from New Orleans to New York occurred in New
Orleans); Seevers v. Tang, 268 A.D.2d 249 (1st Dept. 2000) (brother who lived in California and

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United Kingdom with offices in London and Herefordshire, England” [Comp. (NYSCEF Doc

No. 1): p. 5 – ¶ 17; Exhibit 1: p. 1, ¶¶ 2, 4; Exhibit 2: p. 1, ¶ 2 ], any purported conversion by

OLDFELD did not occur and could not have occurred in New York. [Exhibit 1: p. 2, ¶¶ 5, 6, 7,

11]. Based on the undeniable fact that the purported tort of conversion took place, if at all, outside

of New York, this Court therefore may not exercise personal jurisdiction over OLDFELD via §

302(a)(2).

C. THE COURT DOES NOT HAVE PERSONAL JURISDICTION OVER OLDFELD
PURSUANT TO CPLR § 302(a)(3)(i-ii).

The exercise of Section 302(a)(3) personal jurisdiction over OLDFELD is similarly barred

to the extent the alleged tort of conversion was, as Plaintiffs’ alternatively claim, committed

outside of New York because New York’s well-established case law regarding conversion

indicates that Plaintiffs’ injury could not have occurred in New York, as required to trigger Section

302(a)(3)’s personal jurisdiction provisions. Specifically, under settled New York law the location

of the conversion and the location of the injury caused by the conversion are always one and the

same. See, e.g., Atwal v. iFinex Inc., 2023 WL 3063450, at *12-*13 (W.D.N.Y. Mar. 22, 2023);

Stein Fibers, Ltd. v. Bondex Telas Sin Tejar, No. 1:08CV210LEK/DRH, 2009 WL 385412, at *5,

*6 (N.D.N.Y. Feb. 10, 2009); Popper v. Podhragy, 48 F.Supp.2d 268, 274 (S.D.N.Y.1998); Tri-

State Judicial Services v. Markowitz, 624 F.Supp. 925, 929 (E.D.N.Y. 1985); Associated Trade

Development, Inc. v. Condor Lines, Inc., 590 F.Supp. 525, 528 (S.D.N.Y. 1984); Security National

Bank v. Ubex Corp., Ltd., 404 F.Supp. 471, 474 (S.D.N.Y. 1975); Chemical Bank v. World Hockey

Assn., 403 F.Supp. 1374, 1380 (S.D.N.Y. 1975); Moser v. Boatman, 392 F. Supp. 270, 274

(E.D.N.Y. 1975); Friedr Zoellner (New York) Corp. v. Tex Metals Co., 278 F.Supp. 52, 56

allegedly converted his New York sister’s investment funds did so in California as opposed to New
York).

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(S.D.N.Y. 1967). Moreover and much to Plaintiffs’ chagrin, where Plaintiffs or EHC are located

is utterly irrelevant to the determination of where Plaintiffs’ injury occurred. See id. Applying the

foregoing legal authorities and principles to the instant case means that since OLDFELD’s

purported conversion took place outside of New York (i.e., in England where OLDFELD has its

offices), Plaintiffs’ injury arising therefrom consequently did not occur in New York either. See

id.

While Plaintiffs virtually ignore and side-step the injury-in-New-York requirement by

pivoting to the business and economic requirements of subparagraphs (i) or (ii) of § 302(a)(3),

Plaintiffs fail to recognize that those two subparagraphs are not considered before, until and unless

the requirement that the alleged injury occurred in New York is satisfied – which Plaintiffs did not

satisfy, as discussed above. Additionally, neither the allegations in Plaintiffs’ Complaint nor the

Affirmation of their attorney meet either subparagraph’s requirements. See, e.g., Security National

Bank v. Ubex Corp., Ltd., 404 F.Supp. 471, 473 (S.D.N.Y. 1975); New World Sourcing Group,

Inc. v. SGS SA, 867 N.Y.S. 376, 20 Misc.3d 1122(A), at *4 (Sup. Ct. June 24, 2008). Furthermore,

Mr. Hamon’s December 28, 2023 Affirmation establishes, without dispute, that: (a) OLDFELD

“does not derive substantial revenue in connection with its administration and control of EHC’s

owner-membership interests”; (b) OLDFELD has not “received any compensation, remuneration,

or revenue from EHC or its business”; (c) the only remuneration OLDFELD “received is one-time

payments for the formation of the Trust structure which holds the EHC owner-membership

interests; the payments were received, in five parts, from the individual proposed settlors of the

Trust structure, and no payment was received directly or indirectly from EHC”; and (d) OLDFELD

is paid “[n]ominal fees for routine and ordinary maintenance of the Trust holding the EHC asset

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and other assets are paid by other Trusts (separate legal entities).” [Exhibit 2: p. 2, ¶¶ 7 (emphasis

added), 8, 9].

D. “SUFFICIENT START” AND “FORUM NON CONVENIENS” DECISIONS
THAT PLAINTIFFS RELY ON ARE DISTINGUISHABLE.

Plaintiffs’ reliance on the “sufficient start” case decided virtually 50 years ago is misplaced

because it dealt with whether enough evidence of personal jurisdiction over a nonresident

defendant was presented to justify and permit jurisdictional discovery. 3 Moreover, the instant case

is factually distinguishable based on the utter lack of any record evidence indicating that

OLDFELD (1) “transacts any business within” New York with an articulable nexus to Plaintiffs’

injury, as required by § 302(a)(2); (2) committed the tort of conversion in New York, as required

by § 302(a)(2).; and/or (3) committed a conversion outside of New York that caused injury in New

York, as required by § 302(a)(3).

The inapplicability of the “sufficient start” principle for jurisdictional discovery purposes

is illustrated by the following decisions which did not permit its use due to the absence of any

evidence, like here, warranting the exercise personal jurisdiction over the nonresident

defendant(s). See, e.g., SOS Capital v Recycling Paper Partners of PA, LLC, 220 A.D.3d 25, 34,

196 N.Y.S.3d 382 (1st Dept. Aug. 31, 2023) (plaintiff failed to demonstrate that individual

defendants, from Florida and Pennsylvania, committed a tort within the State of New York in

accordance with the meaning of CPLR 302(a)(2)); Matter of New York Asbestos Litig., 212 A.D.3d

584, 586-587, 182 N.Y.S.3d 100, 103-104 (1st Dept. Jan. 31, 2023) (“The court should have

3
Unlike the instant Plaintiffs, the plaintiff in Peterson v. Spartan Indus., Inc., 33 N.Y.2d
463, 467, 354 N.Y.S.2d 905, 310 N.E.2d 513 (1974), presented evidence that the defendant had
acquired permits to store and sell goods in New York, thus sufficiently establishing that the
defendant purposefully availed itself of the privileges and protections of doing business in New
York.

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granted the motion to dismiss the complaint as against defendant for lack of personal jurisdiction

pursuant to CPLR 302(a)(1) because there was no record evidence suggesting that defendant's

minimal activity in New York had an articulable nexus to plaintiff’s injury.”; plaintiff also failed

to demonstrate defendant was subject to jurisdiction under CPLR 302(a)(2), where the

“purportedly tortious act occurred in Connecticut, not in New York”); Shaps v. D.F.D.S., No. 83

CIV. 8091(CBM), 1985 WL 269, at *3 (S.D.N.Y. Feb. 13, 1985) (third-party plaintiff “failed to

submit any evidence” that exercising personal jurisdiction over defendant would be proper “under

the limited provisions of the New York long arm statute”).

Simply put, Plaintiffs have failed to present any non-conclusory and non-hearsay evidence

that OLDFELD, a British law firm, is subject to the personal jurisdiction of this New York Court

“under the limited provisions of the New York long arm statute.” Shaps, supra. Plaintiffs have

not even satisfied the “sufficient start” threshold for discovery. As the court in Spencer Laminating

Corp. v. Denby, 5 Misc.3d 200, 783 N.Y.S.2d 220 (Sup.Ct., N.Y. County 2004), reasoned when it

granted the defendant’s motion to dismiss for lack of personal jurisdiction:

[A]ll plaintiff has demonstrated is that defendant ordered some goods
from New York. There is no reason to expect that disclosure will lead to
a showing that defendant owned property or advertised in New York, or
that it had staff or agents or telephones here. This is not to say that such
a state of affairs could not have existed. However, looking for them would
be a “fishing expedition.” Participating in this disclosure would be
burdensome and expensive for defendant, and would, in part,
contravene the purpose of rules limiting extra-territorial personal
jurisdiction. The lack of any preliminary showing, and the unlikelihood
of success, convince this Court that defendant need not go through the
process.

Spencer Laminating, 5 Misc.3d at 206, 783 N.Y.S.2d at 224-225 (emphasis added). See Shaps,

supra (observing that “discovery in this instance would only constitute a futile fishing expedition

by the third-party plaintiff and subject [the French corporate defendant] to further needless

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expense” and dismissing complaint based on lack of personal jurisdiction over the foreign

defendant in New York) (emphasis added). This Court should accordingly grant OLDFELD’s

Motion to Dismiss based on lack of personal jurisdiction.

Finally, Plaintiffs incorrectly represent that New York is the only forum with jurisdiction

over all Defendants. As discussed in the foregoing sections, this Court clearly lacks personal

jurisdiction over OLDFELD within the limited parameters of CPLR § 302(a)(1), (2) and (3).

OLDFELD should therefore be dismissed from this lawsuit based on the Court’s utter lack of

personal jurisdictional over it. Plaintiffs’ reliance on National Car Rental Sys. v. La Concorde

Compagnie D’Assurance, 283 A.D.2d 249, 249, 726 N.Y.S.2d 620, 621 (2nd Dept. 2013), is

misplaced because it dealt with a motion to dismiss on forum non conveniens grounds. National

Car Rental therefore does not preclude the granting of OLDFELD’s Motion to Dismiss on lack of

personal jurisdiction grounds.

II. FAILURE TO STATE A CAUSE OF ACTION

This Court’s lack of personal jurisdiction over OLDFELD requires the dismissal of all

claims against OLDFELD and obviates the need to address the viability of Plaintiffs’ proposed

causes of action. Should the Court disagree on the personal jurisdiction bases for dismissal,

OLDFELD submits that all claims against it should be dismissed for failure to state viable theories

of relief.

A. COUNT 3 DOES NOT STATE A CLAIM FOR REPLEVIN AGAINST OLDFELD.

Count 3 is fatally devoid of any specific allegations expressly directed to Defendant

OLDFELD. [Comp. (NYSCEF Doc No. 1)]. The new, pulled out of thin air, and factually-baseless

assertions in Plaintiffs’ Response that OLDFELD’s “involvement contributed” to “directly

violating the Plaintiffs’ rightful claim to possess the Collateral” and that OLDFELD’s “acceptance

and possession of the shares” plus OLDFELD’s “role in the transfer and acceptance” thereof

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require that it “to return the Collateral to Plaintiffs,” [Doc. No 68: pp. 12-13], do not cure the

Complaint’s obvious pleading deficiencies regarding the essential elements of a replevin claim

against OLDFELD. 4

Ironically, the allegations in Count 3 concern whether the rights of Plaintiffs or the

Borrower, not OLDFELD, are superior as to the Collateral and whether Plaintiffs may obtain

payments from the Collateral and the proceeds derived therefrom with regard to the Borrower’s,

not OLDFELD’s, default on the loan. [Comp. (NYSCEF Doc No. 1): ¶¶ 77-78]. Moreover,

Plaintiffs seek to enforce their “rights under the LSA and other Loan Documents” in order to

recover possession of the Collateral yet Plaintiffs fail to allege that OLDFELD is a party to or has

any obligations under any of those documents. [Comp. (NYSCEF Doc No. 1): ¶ 81].

Count 3 should therefore be dismissed for failure to state a replevin cause of action against

OLDFELD.

B. COUNT 4 DOES NOT STATE CLAIMS FOR A TEMPORARY
RESTRAINING ORDER AND INJUNCTIVE RELIEF AGAINST OLDFELD.

Plaintiffs conveniently ignore the fact that Count 4 of their Complaint, like Count 3,

consists of nothing more than general, conclusory and commingled allegations, none of which

concern and are specifically directed to Defendant OLDFELD. Moreover and contrary to the

statements in Plaintiffs’ Response, their actual Complaint does not allege that Plaintiffs are likely

to ultimately succeed on the merits against OLDFELD, that Plaintiffs have or will sustain the

4 A plaintiff seeking replevin must prove “(1) that plaintiff has a possessory right superior
to that of the defendant; and (2) that plaintiff is entitled to the immediate possession of that
property.” Deleon v. Charlie Auto Sales, Inc., 61 Misc.3d 1216(A), at *2, 110 N.Y.S.3d 899 (N.Y.
Civ. Ct. Nov. 2, 2018) (unreported disposition). Additionally, said plaintiff must include
allegations and proof of “ ‘a demand upon, and a refusal of, a person in possession of a chattel to
return it.’ ” Olivo v. Medvedeva, 80 Misc.3d 742, 2022 WL 20380958, at *6 (Civ. Ct. N.Y. Nov.
30, 2022) (citation omitted).

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requisite immediate and irreparable injury due to any purported acts or omissions of OLDFELD,

and that the equities tip the scales in Plaintiffs’ favor and against OLDFELD. A temporary

restraining order and injunctive relief are also unavailable to Plaintiffs because they have an

adequate remedy at law via compensatory money damages. See Shubin v. Slate Digital, Inc., No.

21 CIV. 9464 (PAE), 2022 WL 168152, at *5 n.4 (S.D.N.Y. Jan. 19, 2022). Plaintiffs therefore

are not entitled to any form of injunction and Count 4 should be dismissed for failure to state a

claim for equitable relief.

C. COUNT 5 DOES NOT STATE A
DECLARATORY JUDGMENT CLAIM AGAINST OLDFELD.

Like preceding Counts 3 and 4, Count 5 consists of nothing more than general, conclusory

and commingled allegations, none of which are expressly directed to Defendant OLDFELD.

Moreover, while the Plaintiffs’ claim for declaratory judgment focuses on purported possessory

rights to the “Collateral” and the “Defendants’ Obligations under the LSA and other Loan

Documents,” it fatally fails to contain an allegation that OLDFELD is a party to any such loan-

related agreements. [Comp. (NYSCEF Doc No. 1): ¶¶ 90, 91]. The purported contractual

“controversy” Plaintiffs contend exists thus does not pertain to OLDFELD and Count 5 should be

dismissed as to OLDFELD for failure to state an action for declaratory relief.

D. COUNT 6 DOES NOT STATE A CONVERSION CLAIM AGAINST OLDFELD.

Plaintiffs’ Count 6 fails to state a conversion cause of action against OLDFELD. In

particular, Count 6 only alleges that Defendants “Borrower, Success and the Individual

Defendants” “interfered with [Plaintiffs’] superior possessory right to the Collateral by . . .

wrongfully transferring the Converted Shares and/or causing the Converted Shares to be

transferred to the Individual Defendants [and ultimately the FSDJSB 888 foreign trust] . . . and

asserting wrongful dominion over the Converted Shares.” [Comp. (NYSCEF Doc No. 1): ¶ 96].

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Defendant OLDFELD is not one of the Defendants who allegedly “interfered” with Plaintiffs’

possessory rights to the “Collateral” by “wrongfully transferring” and “asserting wrongful

dominion over” the subject “Converted Shares.” [Comp. (NYSCEF Doc No. 1): ¶ 96].

Additionally, Plaintiffs do not allege that OLDFELD “transferred, commingled and/or diverted

funds and/or other assets comprising portions of the Collateral.” [Comp. (NYSCEF Doc No. 1):

¶ 97]. OLDFELD therefore is not one of the purported wrongdoers in Count 6 who exercised any

unauthorized or wrongful dominion over the Converted Shares to the exclusion of the Plaintiffs’

rights. [Comp. (NYSCEF Doc No. 1): ¶¶ 96, 97]. Count 6 fails to state a conversion action against

OLDFELD and OLDFELD should be dismissed therefrom.

III. CONCLUSION

Defendant OLDFELD, LTD, as Trustee of the FSDJSB 888 Trust, respectfully submits

that this Court should enter an Order granting Defendant OLDFELD LTD’s Motion to Dismiss

because the Court does not have and cannot exercise personal jurisdiction over OLDFELD, LTD,

a law firm from England. The Plaintiffs’ claims against Defendant OLDFELD, LTD in Counts 3,

4, 5 and 6 of the Complaint should also be dismissed because they fail to state viable causes of

action against OLDFELD, LTD.

Dated: New York, New York
December 29, 2023

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NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/29/2023

Respectfully submitted,

/s/ Juan C. Zorrilla
Mallory A. Sullivan
Email: MSullivan@fowler-white.com
Juan C. Zorrilla
Fla. Bar No. 381403
Email: jzorrilla@fowler-white.com

FOWLER WHITE BURNETT, P.A.
Brickell Arch, Fourteenth Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-9200
Facsimile: (305) 789-9201

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Case Info

Judge

Joseph J Risi Track Judge’s New Case

Case No.

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Document Filed Date

December 29, 2023

Case Filing Date

June 20, 2023

County

Parties

ARIZONA ROCK LLC Plaintiff
Boris Musheyev Defendant
CHATTORAJ, PARTHA PRATIM Attorney for the Defendant
COHEN, NATHAN Attorney for the Plaintiff
EAST HUDSON CAPITAL LLC Defendant
GFE NY LLC dba GLOBAL FUNDING EXPERTS dba GLOBAL FUNDING EXPERTS NY dba GFENY Defendant
JOHNSON, ADRIAN JAWAUN Attorneys for Plaintiffs
LIBERTY PARK CAPITAL LLC Plaintiff
MONEYLI LLC Defendant
NEWMAN, EVAN M Attorney for the Plaintiff
OLDFELD, LTD AS TRUSTEE OF THE FSDJSB 888 TRUST Defendant
QUEENS PLAZA CAPITAL LLC Defendant
Rodshel Musheyev Defendant
Saks Management d/b/a Saks Group, LLC Non Party
STANDARD & CO LI, LLC Defendant
SUCCESS CAPITAL LLC Defendant
SULLIVAN, MALLORY ASHTON Attorney for the Defendant
Viacheslav Eliyayev Defendant
WHITE ROAD CAPITAL LLC dba GFE HOLDINGS Defendant
WRUBEL, RACHEL Attorney for the Plaintiff

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