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SUPREME COURT- STATE OF NEW YORK

SHORT FORM ORDER
Present:

HON. TIMOTHY S. DRISCOLL

Justice Supreme Court

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GERALD PINSKY , BOTNICK TRUST,
CORTLAND REALTY INVESTMENTS, LLC, TRIAL/IAS PART: 16
NASSAU COUNTY

Plaintiffs,
IndeJ( No: 601066-
Motion Seq. No: 1
-against- Submission Date: 5/24/12

TORAH ENCOUNTERS INC., YOSEF GUTMAN,

YERUCHAM GOLDWASSER , TOV A GOLDWASSER

Defendants.

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The following papers having been read on this motion:

Notice of Motion, Affirmation in Support, Affidavits in Support and EJ(hibits....

Memorandum of Law in Support..............................................................................
Affirm a tio D in Opposition and Exhibits....... II .... ..... II ...... 11.1 1"'1 11.1... .... 11.1..."
Affidavit of G. Barkany and Exhibit.........................................................................
Mem 0 rand urn of Law in Op positio D...... I""'"''''

This matter is before the Court for decision on the motion by Defendants Y osef Gutman
Yoser' ), Yerucham Goldwasser (" Yerucham ) and Tova Goldwasser (" Tova ) filed on
Februar 16 2012 and submitted on May 24 2012. Counsel for the paries provided the Cour
with a copy of a Parial Stipulation of Voluntar Discontinuance dated April 18 , 2012 , reflecting

1 As noted by the Clerk when this motion was fied

, the caption on Defendants ' notice of motion is not
identical to the caption on the complaint (Ex. A to Schwartz Aff in Supp.
 the discontinuance of this action as to Defendant Tova Goldwasser. With respect to Defendants
Y osef and Yerucham , for the reasons set forth below, the Court concludes that it appears from
affidavits submitted in opposition to the motion that facts essential to justify opposition may
exist and may be uncovered during discovery. Accordingly, the Court denies the motion
without prejudice to Defendants moving to dismiss on the basis of lack of personal jurisdiction
following the completion of discovery.
BACKGROUND
A. Relief Sought
Defendants Y osef and Yerucham (" Defendants ) move for an Order , pursuant to CPLR
3211(a)(8), dismissing the Complaint against the Defendants on the grounds oflack
personal jurisdiction.
Plaintiffs oppose Defendants ' motion.
B. The Parties ' History
The Complaint alleges that this case arises from a Ponzi scheme perpetrated by Gershon
Barkany (" Barkany ) who fraudulently represented to investors that he was a successful
financial advisor and real estate. Plaintiffs allege that Barkany s income , in fact , was generated
from the sale of investments in fraudulent real estate and investments transactions that were
integral to the alleged scheme (" Scheme ). The Complaint alleges, further , that Defendants
were beneficiaries of the Scheme in that , between 2008 and 2010 , they received transfers
Transfers ) in the form of " charitable donations " from Barkany and the entities he controlled
(Compl. at 3) in excess of$1.7 milion. These " donations " allegedly helped create the
impression that Barkany was an honest and charitable businessman. Plaintiffs seek the return
the proceeds that Defendants received, directly or indirectly, from the Transfers.
The Complaint alleges that Defendant Torah Encounters Inc. ("TEl" ), which maintains
offces in Connecticut , holds itself out to the public as a nonprofit charitable organization. The
Complaint alleges, fuher, that TEl regularly transacts business in the State of New York ("New
York" ) by offering weekly dinners and classes at a facility located in New York City.
The Complaint alleges that Y osef is an individual residing in Connecticut who was , at all
relevant times , the Executive Director of TEl , and regularly transacted business in New York in
that capacity. The Complaint alleges that Yerucham is an individual residing in Israel who holds
 dual United States and Israel citizenship. The Complaint alleges that Yerucham was , at all
relevant times , the Founder , Director and Dean of TEl , and regularly transacted business in New
York in that capacity.
The Complaint contains five (5) causes of action: 1) the Transfers violated New York
Debtor and Creditor Law (" DCL" ) ~ 273; 2) the Transfers violated DCL ~275; 3) the Transfers
violated DCL ~ 276; 4) the Transfers violated DCL ~ 276(a); and 4) Defendants were unjustly
enriched. Plaintiffs seek monetary damages , as well as injunctive relief and a pre-judgment
older of attachment restraining and enjoining Defendants from disposing of their assets , and
attaching Defendants ' assets.
In support of Defendants ' motion , Y osef affirms that 1) he resides in Connecticut; 2) he
does not live , work or conduct business in New York; 3) he did not physically enter New York
to engage in any business transactions with any of the Plaintiffs in any capacity; and 4) he did
not physically enter New York to engage in any of the transactions complained of in the
Complaint. Yerucham affrms that 1) he resides in Israel; 2) he does not live , work or conduct
business in New York; 3) he did not physically enter New York to engage in any business
transactions with any of the Plaintiffs in any capacity; and 4) he did not physically enter New
York to engage in any of the transactions complained of in the Complaint. Defendants submit
that Plaintiffs have not alleged that Defendants personally engaged in any systematic course of
doing business in New York , but rather are improperly attempting to establish jurisdiction over
them personally by alleging that TEl engaged in a systematic course of doing business in New
York.
In opposition , Barkany affrms that he is a resident of New York and a principal of
numerous entities set forth at paragraph 3 of his Affidavit (" Affiiated Entities ), all of which
were incorporated in New York. The Plaintiffs make reference to the Affiiated Entities in the
Complaint , alleging that some of the transactions at issue involved loans by Plaintiffs directly to
Barkany or the Affiiated Entities (Compl. at 27).
Barkany affirms that he has known Yerucham for over seven (7) years , during which
time he has met with him numerous times during his " many " visits to New York (Barkany Aff.
at 5). In addition to meeting with Yerucham during his visits to New York , Barkany and
Yerucham have communicated by email and telephone, and Barkany provides a copy of emails
dated November 12 , 19 and 26 of2010 (id. at Ex. A). Those emails , sent by " Rabbi
Goldwasser " contain references that appear religious and/or philosophical , and do not make any
obvious reference to the transactions at issue. The emails do , however , reflect that they are from
Yerucham at TEl , and contain a New York address for that entity.
Barkany affrms that , as a result of his meetings and correspondence with Yerucham , he
and his Affliated Entities transferred in excess of $1. 7 milion to TEl , which funds were drawn
on accounts at New York financial institutions. In addition , Barkany gave money directly to
Yerucham which was intended for his own personal use , which funds were also drawn on
accounts at New York financial institutions.
Barkany affirms that he has known Y osef since 2008 and has met with him in New York
on a number of occasions " (Barkany Aff. at 10). During two of those meetings , Barkany and
Y osef discussed Barkany hiring Y osef " to manage the contributions that I was making to other
charitable and religious organizations (id. at 11). Y osef agreed to work for Barkany in this
capacity, and Barkany agreed to compensate him. Although Yosefbegan working for Barkany,
his employment ceased when Barshany no longer had a need for his services , and Barshany
never paid Y osef for the work he performed.
Plaintiffs ' counsel provides documentation in support of Plaintiffs ' assertion that
Yerucham regularly transacts business in New York, including 1) a document dated
April 20 , 2012 regarding Yerucham providing classes on a monthly basis at TEl's Park Side
Torah Center in New York City, 2) photographs ofYerucham at an anual TEl fudraising
dinner in New York , 3) a check dated June 14 2010 payable to TEl from Barkany and another
individual who are New York residents , in the amount of $36 000 , drawn on a New York
financial institution , and 4) two transfers , each in the amount of$7 000 , from Barkany and
another individual to Tova and Yerucham , which contain the names " Tova Goldwasser" and
Jeremy Goldwasser" in the memo portions. With respect to Defendant Yosef, Plaintiffs
counsel notes that the TEl literature lists Y osef as a member of its staff, and provides
photographs of Y osef at the 20 II TEl anual dinner in New York.
C. The Paries ' Positions
Defendants submit that the Court should dismiss the Complaint against Defendants Y osef
and Yerucham on the grounds that Plaintiffs 1) have failed to identify a purposeful activity or
 transaction by Yerucham in New York out of which the cause of action arose; and 2) have failed
to establish a substantial relationship or nexus between the business transacted by Defendants in
New York and Plaintiffs cause of action.
Plaintiffs oppose Defendants ' motion , submitting that " the puroseful nature of
(Yerucham) .and (Yosefs) activity in New York and the quality of their contacts with the state
establish that they transacted business in New York and are subject to personal jurisdiction in
this Court" (Ps ' Memo. of Law in Opp. at p. 8). Plaintiffs submit that those contacts are
demonstrated inter alia by 1) Barkany s affirmations regarding his meetings with the
Defendants in New York , and 2) the documentar evidence reflecting Defendants ' presence in
New York to give lectures, teach classes and engage in fudraising for TEl , an organization that
operated a facility in New York.
RULING OF THE COURT
CPLR ~ 302 provides , in pertinent part:
As to a cause of action arising from any of the acts enumerated in this section, a
cour may exercise personal jurisdiction over any non- domiciliar... who in person
or through an agent: 1) transacts any business within the state... ; or 2) commits a
tortious act within the state... ; or 3) commits a tortious act without the state causing
injury to a person or property within the state... ifhe (i) regularly does or solicits
business , or engages in any other persistent course of conduct , or derives substantial
revenue from goods used or consumed or services rendered, in the state , or (ii) expects
or should reasonably expect the act to have consequences in the state and derives
substantial revenue from interstate or international commerce.

Personal jurisdiction over a defendant that engages in purposeful activity is proper

because the defendant has invoked the benefits and protections of our laws. Ehrenfeld v. Bin
Mahfouz 9 N. 3d 501 508 (2007). Thus , a defendant may transact business in New York and
be subject to personal jurisdiction even though the defendant never enters New York , so long as
the defendant's activities here were puroseful and there is a substantial relationship between the
transaction and the claim asserted. Fischbarg v. Doucet 9 N. Y.3d 375 , 380 (2007). Puroseful
activities are those in which a defendant , through volitional acts , avails itself of the privilege of
conducting activities within the foru State , thus invoking the benefits and protection of its
laws. Daniel B. Katz Associates Corp. v. Midland Rushmore, LLC, 90 A.D. 3d 977 979 (2d
Dept. 2011), citing Fischbard, supra at 380 , quoting McKee Elec. Co. v. Rauland-Borg Corp.
 20 N. Y.2d 377 382 (1967).

While the ultimate burden of proof rests with the pary asserting jurisdiction , the plaintiff
in opposition to a motion to dismiss pursuant to CPLR ~ 3211(a)(8), need only make aprima
facie showing that the defendants were subject to the personal jurisdiction of the Supreme Cour.
Daniel B. Katz Associates Corp. 90 A.DJd at 978 , quoting Cornely v. Dynamic HVAC
Supply, LLC 44 ADJd 986 (2d Dept. 2007). When opposing a motion to dismiss a complaint
pursuant to CPLR 9 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction
is necessar, plaintiffs need not make aprimafacie showing of jurisdiction , but instead need
only demonstrate that facts may exist to exercise personal jurisdiction over the defendant. Id.
citing Ying Jun Chen v. Lei Shi 19 AD. 3d 407 407- 408 (2d Dept. 2005), quoting CPLR
~ 3211(d). lfit appears from affdavits submitted in opposition to the motion that facts essential
to justify opposition may exist but canot then be stated , the cour may, in the exercise of its
discretion , postpone resolution of the issue of personal jurisdiction. Id. quoting CPLR ~
3211(d). CPLR 3211(d), titled " Facts unavailable to opposing pary, " provides as follows:
Should it appear from affidavits submitted in opposition to a motion made under
subdivision (a) or (b) that facts essential to justify opposition may exist but canot then
be stated , the cour may deny the motion , allowing the moving party to assert the
objection in his responsive pleading, if any, or may order a continuance to permit further
affidavits to be obtained or disclosure to be had and may make such other order as may
be just.

Plaintiffs have alleged that Defendants , through meetings with Barkany and their
involvement with TEl in New York , have engaged in puroseful activities in New York , and that
there is a substantial relationship between those activities and the claims asserted by Plaintiffs.
Although the emails provided by Barkany do not appear to relate specifically to the Transfers
they corroborate that Barkany and Yerucham communicated with each other , and that Yerucham
represented TEl , an entity located in New York. The other documentation provided by Plaintiffs
also provides evidence of a relationship between Defendants and TEl , and Defendants
involvement in TEl's activities in New York. Under these circumstances , the Cour concludes
that Plaintiffs have demonstrated that facts may exist to exercise personal jurisdiction over the
Defendants , and furter discovery may provide additional proof of Defendants ' engagement in
puroseful activities in New York , and a substantial relationship between those activities and the
, iI.

allegations in the Complaint. Accordingly, pursuant to CPLR ~ 3211(d), the Court denies the
motion , without prejudice to Defendants moving to dismiss on the basis of lack of personal
jurisdiction following the completion of discovery.
All matters not decided herein are hereby denied.
This constitutes the decision and order of the Court.
The Cour reminds counsel for the parties of their required appearance before the Cour
for a Compliance Conference on August 9 , 2012 at 9:30 a.
ENTER

DATED: Mineola , NY
July 9 , 2012

HON. TIMOTHY S. DRISCOL

ENTERED
JUL 1 7 2012
NASSAU
COUNTY
COUNTY CLER'J('
I O"JCf