The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 1-34, 44-47 Answering Papers 53, 55-57 Reply 58-62, 66; 64 Briefs: Plaintiff’s/Petitioner’s 39 Defendant’s/Respondent’s 54 Decision/Order The plaintiff seeks an order of attachment against any bank account, stock account, or real or personal property currently owned by the defendants, either individually or through their corporations. An Order to Show Cause was issued on November 5, 2021 (Bergman, J.), providing that pending further order of the Court, an order of attachment is granted against any real property owned by the defendants, whether individually or through their corporations, including without limitation 496 Wainscott Harbor Road, Sagaponack, New York 11962. Defendants oppose the requested relief. Plaintiff specifies that this application seeks only to attach property belonging to the defendants located in the State of New York. In her thirty-six (36)-page complaint that annexes twenty-seven (27) exhibits and is verified by the plaintiff, she alleges, in sum and substance, that the defendants defrauded her of her retirement and other monies equaling or exceeding $500,000.00, through improper investments, negligent and misleading advice, and breach of a promissory note, with the plaintiff’s funds being used to finance the individual defendants’ lavish lifestyle, including the purchase of a luxury home located at 496 Wainscott Harbor Road, Sagaponack, New York. Plaintiff alleges that she is a retired school teacher, who is also widowed. Plaintiff’s relationship with Shaun Golden commenced in or about 2009 or 2010, while plaintiff’s husband was still alive. At that time, Golden was employed as a financial advisor for NEXT Financial Group. Golden was terminated from that financial firm in January 2011, and then was briefly employed by another firm known as Stern Agee Financial Services, until he was terminated five months later. On December 1, 2011, Golden was also apparently barred by FINRA1 from association with any FINRA member in any capacity. Plaintiff alleges that she was unaware of any of the foregoing. The complaint alleges eight causes of action sounding in breach of fiduciary duty (Shaun Golden [Golden], Golden Wealth Management [GWM], and Golden Wealth Properties [GWP]); negligence (Golden, GWM, GWP); fraud (Golden, GWM, GWP); fraudulent inducement (Golden GWM, GWP); conversion (all defendants); breach of contract (GWP); money had and received (all defendants); and unjust enrichment (all defendants). CPLR §6212 (a) provides that, “[o]n a motion for an order of attachment, or for an order to confirm an order of attachment, the plaintiff shall show, by affidavit and such other written evidence as may be submitted, that there is a cause of action, that it is probable that the plaintiff will succeed on the merits, that one or more grounds for attachment provided in section 6201 exist, and that the amount demanded exceeds all counterclaims known to the plaintiff. Plaintiff asserts that she has “at least” two grounds for attachment pursuant to CPLR §6201, which provides in pertinent part that “[a]n order of attachment may be granted…where the plaintiff has demanded and would be entitled, in whole or in part, or in the alternative, to a money judgment against one or more defendants, when 1. the defendant is a nondomiciliary residing without the state, or is a foreign corporation not qualified to do business in the state; or…3. the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff’s favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts.” Whether to grant an order of attachment is a matter of the court’s discretion (Maitrejean v. Levon Properties Corp., 45 AD2d 1020, 1021 [2d Dept 1974]). There are no counterclaims asserted in any of the defendants’ answers, and this application has been made on notice to the defendants. As to the likelihood of success on the merits of the causes of action asserted in the complaint, the Court recognizes that attachment is a harsh remedy that must be strictly construed in favor of those against whom it may be employed (Kornblum v. Kornblum, 34 AD3d 748, 749 [2d Dept 2006]); however, there is a tension between that requirement and the evaluation of the probability of success on the merits, which requires that all legitimate inferences should be drawn in favor of the party seeking the attachment (In re Amaranth Natural Gas Commodities Litigation, 711 FSupp2d 301, 306 [SDNY 2010]). “The most obvious definition of probable is more likely than not” (Merrill Lynch v. Baninvensa Capital Markets, 1995 US Dist LEXIS 8811 [SDNY 1995]). Defendants’ opposition to the instant application does not genuinely dispute that the plaintiff has demonstrated the likelihood of success on the merits of her causes of action alleged in the complaint; rather defendants contend that the plaintiff has failed to establish that she has a cause of action because she “impermissibly groups the allegations against the ‘defendants’ collectively.” The Court does not agree with defendants’ claim in this regard. The causes of action alleged in the complaint are specified and differentiated as against the various defendants. Moreover, based upon the verified complaint that serves as an affidavit, together with the exhibits annexed thereto, this Court finds that plaintiff is more likely than not to succeed on each of the causes of action alleged in her complaint. It is apparently undisputed that none of the defendants has made a single payment to the plaintiff, including under the terms of the agreement/promissory note. Furthermore, where an order of attachment is based upon a defendant being a nondomiciliary, attachment serves to protect the plaintiff against defendant’s ability to pack his bags, abandon his place of convenience within the state, and remain at his permanent residence outside the reach of New York enforcement procedures (ITC Entertainment, Ltd. v. Nelson Film Partners, 714 F2d 217, 221[2d Cir 1983]); thus in interpreting CPLR §6201(1), courts focus “on whether there is a likelihood that the defendant will have adequate assets within the state to respond to a judgment against him” (Id.). Here, there does not seem to be any real dispute as to the residence of the individual defendants. Rebecca Golden’s answer admits that she resides at 42 Nettleton Hollow Road, Washington, Connecticut. Although Shaun Golden asserts in his answer that he “maintains residences in both Connecticut and New York,” Golden’s assertion rings hollow in view of the fact that it is unsupported by any affidavit made by him stating that he lives at any particular New York address, plus the fact that it is undisputed that the only known New York asset/potential residence (the Sagaponack property) is presently listed for sale in excess of seven million dollars, and he was personally served with the summons with notice on September 30, 2021, at 42 Nettleton Hollow Road, Washington, Connecticut. The two corporate defendants, although they are listed as active domestic entities with New York’s Secretary of State, each appear to be delinquent in the filing of the required biennial statement (Business Corporation Law §408; Limited Liability Company Law §301 [e]). In fact the entities each appear to be delinquent since March 31, 2015 (GWM) and March 31, 2016 (GWP). Furthermore, the address for service of process for GWP and GWM is the Sagaponack property that is presently listed for sale. Accordingly, these entities not only appear to be potentially de facto inactive, but they also do not appear to be genuine domestic companies. There is no affidavit from Shaun Golden, who is listed as CEO for GWM, and is the sole shareholder and member of the companies, explaining the noted delinquencies, listing the assets of the companies, or stating any location or re-location of the entity(ies) in the event the Sagaponack property is sold. Of further concern to the Court, and supporting the issuance of an order of attachment as to the Sagaponack property, is evidence that other plaintiffs have in the past obtained an order of attachment and filed a notice of pendency against the same Sagaponack property in connection with their claims of a similar nature to plaintiff’s (Suffolk County Supreme Court, Index No. 607792/2020). When that matter was settled, the notice of pendency was discharged. The plaintiff in this action has also submitted Suffolk County Clerk records showing that there are current mortgages on the Sagaponack property in the amounts of $2,180,000.00 and $1,275,270.00. Furthermore, a Judgment by Confession has been entered against Shaun Golden on July 15, 2020, by the Suffolk County Clerk, in the total sum of $1,116,357.10. Stephanie M. Golden, a relative of Shaun P. Golden, obtained this judgment against him (Index No. 608851/2020). The affidavit of confession of judgment states that it is for a “debt justly due to the plaintiff arising from the following facts: Defendant duly executed a Promissory Note and Mortgage on property situate in Sagaponack…and further known as and by street address: 496 Wainscott Harbor Road, Sagaponack, NY.” When property located at 81 Rose Way, Water Mill, New York was sold in December 2020, by Shaun Golden, for a price in excess of six million dollars, it was sold to 81 Rose Way LLC. The identity of the members of 81 Rose Way LLC is unknown to this Court, or to the plaintiff. The defendants’ opposition to the instant application is resoundingly silent as to whether 81 Rose Way LLC is at all related to any of the defendants, or is wholly independent of them. In addition to these concerns, the FINRA Broker Check Report annexed to the complaint demonstrates a sketchy history for Shaun Golden in the financial industry, which apparently resulted in his forming his own business entities (GWM and GWP) when he was no longer employable, and prohibited from associating with any FINRA member in any capacity. Accordingly, this Court finds that there is a great likelihood that none of the defendants will have adequate assets to respond to a judgment that will likely be in excess of $500,000.00, thereby warranting an order of attachment with respect to the real property known as 496 Wainscott Harbor Road, Sagaponack, New York 11962, pursuant to CPLR §6201(1). As noted by this Court, the plaintiff confines her request to attach property located only in New York. The only identifiable New York property is the Sagaponack property; thus, the order of attachment shall apply solely to that real property located at 496 Wainscott Harbor Road. Having granted the relief on this basis, the Court does not reach plaintiff’s request for an order of attachment pursuant to CPLR §6201 (3). CPLR §6212 (b) requires plaintiff to give an undertaking to be fixed by the Court, but in any case no less than five hundred dollars. The undertaking provides financial security for the benefit of the defendants and the sheriff. The bond is conditioned on plaintiff’s payment of all costs and damages, including reasonable attorney’s fees, caused by the attachment if either the defendants recover judgment in their favor, or a final determination is made that the plaintiff was not entitled to the attachment, and the balance conditioned that the plaintiff shall pay the sheriff all of his allowable fees. Plaintiff’s failure to timely file an undertaking requires vacatur of he order of attachment (Kornblum, supra). Here, the Sagaponack property is listed in excess of $7,000,000.00; however, it is apparently encumbered by two mortgages in excess of $3,000,000.00, and there appears to be the additional million-dollar judgment entered against Shaun Golden personally. Although none of the parties has addressed the required undertaking, based upon the list price of the home, and considering the amount of the two mortgages and the judgment, together with the amount of damages sought by plaintiff equal or exceeding $500,000.00, plus statutory interest, the Court determines that plaintiff shall post an undertaking in the amount of $500,000.00. Based upon the foregoing, it is hereby ORDERED that the plaintiff shall have an order of attachment as to the real property known as 496 Wainscott Harbor Road, Sagaponack, New York (Dist 0900; Section 056.00; Block 03.00 Lot 031.000), and it is further ORDERED that the plaintiff shall post an undertaking in the amount of $500,000.00, and it is further ORDERED that within ten days after the date of this Decision and Order granting an order of attachment, the plaintiff shall file with the Suffolk County Clerk the order of attachment and the affidavit and other papers upon which it was based, with the exception of the summons and complaint that are already filed, and proof of the undertaking. The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [ ] NON-FINAL DISPOSITION [ X ] Dated: March 18, 2022
