Siegel v. Kontogiannis et al

Filing 131

ORDER ADOPTING 129 REPORT AND RECOMMENDATIONS. The Court has reviewed the unopposed Report and Recommendations ("R&R") and, finding no clear error, the Court adopts Judge Orenstein's R&R in its entirety pursuant to 28 U.S.C. § 6 36(b)(1). The Court denies 114 Plaintiffs' motion for summary judgment, 122 Toppin's motion for summary judgment, and 117 Sapphire and Simos' motion for summary judgment. Ordered by Judge Margo K. Brodie on 3/29/2017. (Haji, Sara)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------JEFFREY SIEGEL, RICHARD SIEGEL and
JUNE SIEGEL,
Plaintiffs,

ORDER
15-CV-2856 (MKB) (JO)

v.
THOMAS KONTOGIANNIS, MICHAEL
RICARDO TOPPIN, TOPPIN & TOPPIN,
THEODORE SIMOS and SAPPHIRE LUXURY
ESTATES,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiffs Jeffrey Siegel, Richard Siegel and June Siegel commenced the above-captioned
action on May 18, 2015, alleging that Defendants Thomas Kontogiannis, Michael Ricardo
Toppin, the law firm of Toppin & Toppin, Theodore Simos and Sapphire Luxury Estates
(“Sapphire”) defrauded Plaintiffs and were unjustly enriched in connection with the transfer of
real property located at 3301 Atlantic Avenue in Brooklyn, New York (the “Property”).
(Compl., Docket Entry No. 1.)
I.

Background
The Court assumes the parties’ familiarity with the facts of the case, which are set forth

in greater detail in Magistrate Judge James Orenstein’s Report and Recommendation dated
March 14, 2017 (the “R&R”). (See R&R, Docket Entry No. 129.) In 2008, Plaintiffs and their
family-owned company, Blue Ridge Farms, Inc., filed suit in New York State Supreme Court,
Kings County against Kontogiannis, his daughter, and their company, 3301 Atlantic Avenue
LLC (“Atlantic”), bringing tort and breach of contract claims related to the transfer of the

Property from Plaintiffs to Atlantic. (See id. at 2 (citing Blue Ridge Farms Inc. v. Kontogiannis
et al., Index No. 23246/08 (N.Y. Sup. Ct. 2008) (the “Blue Ridge Action”)).) Plaintiffs prevailed
in the Blue Ridge Action and secured several judgments against Kontogiannis and his daughter
for monetary damages and injunctive relief, including rescission of the original property transfer
to Atlantic. (Id.)
In brief, Plaintiffs attempted to enforce their judgments in the Blue Ridge Action in part
by obtaining a quitclaim deed from Kontogiannis’ daughter to her membership interest in
Atlantic. (Id.) Plaintiffs then adopted a resolution amending the operating agreement of Atlantic
to appoint Richard Siegel as the managing member of Atlantic, with sole power to act on its
behalf. (Id. at 3.) Shortly thereafter, Kontogiannis also represented himself as a managing
member of Atlantic and executed a deed transferring ownership and title of the Property to
Sapphire, which was owned by Kontogiannis’ nephew, Simos. 1 (Id.) Without knowledge of this
transfer, Plaintiffs entered into a written agreement with a non-party to assign Plaintiffs’ rights in
the Property, and, upon learning that a deed to the Property had been recorded by Sapphire,
terminated the non-party agreement at their own expense. (Id.) Plaintiffs then assigned all of
their remaining rights and interests in the Property to non-party 3301 Atlantic Partners LLC
(“Atlantic Partners”) for what Plaintiffs contend was a severely reduced price of $300,000. (Id.)
Weeks after Plaintiffs’ assignment to Atlantic Partners, Sapphire and Simos transferred the deed
for the Property to a company called Atlantic Chestnut LLC for $324,000. (Id. at 3–4.) This
action followed.
Plaintiffs allege that, despite knowing that managing membership in Atlantic and interest

1

Simos appears to have been represented by Toppin and his law firm, Toppin & Toppin,
during several of the relevant transactions.

2

in the Property had been turned over to Plaintiffs by quitclaim deed and judgment, Defendants
engaged in a “common plan” to fraudulently interfere with Plaintiffs’ ability to enforce their
court judgments and rights in the Property. (Compl. ¶¶ 51–55.) Defendants allegedly effected
this plan by fraudulently transferring the Property to Sapphire and Simos for virtually no
consideration and then transferring it to Atlantic Chestnut, forcing Plaintiffs to terminate their
rights for significantly less than they were owed. (Id. ¶¶ 56–61.)
On July 21 and 22, 2016, all of the parties except for Kontogiannis 2 filed motions for
summary judgment. (See Pls. Mot. for Summ. J., Docket Entry No. 114; Sapphire Mot. for
Summ. J., Docket Entry No. 117; Toppin Mot. for Summ. J., Docket Entry No. 122.) By order
dated August 3, 2016, the Court referred the motions to Judge Orenstein for a report and
recommendation. (See Order Referring Mot. dated Aug. 3, 2016.) In the R&R, Judge Orenstein
identified several issues of material fact and recommended that the Court deny all three motions
for summary judgment. (See R&R 1, 10, 18.) No party has opposed the R&R.
II. Discussion
A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). “Failure to object to a magistrate judge’s report and recommendation
within the prescribed time limit ‘may operate as a waiver of any further judicial review of the
decision, as long as the parties receive clear notice of the consequences of their failure to
object.’” Sepe v. N.Y. State Ins. Fund, 466 F. App’x 49, 50 (2d Cir. 2012) (quoting United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)); see also Almonte v. Suffolk Cty., 531 F. App’x

2

Kontogiannis is currently incarcerated in Fort Dix, New Jersey, and proceeds pro se in
this action.
3

107, 109 (2d Cir. 2013) (“As a rule, a party’s failure to object to any purported error or omission
in a magistrate judge’s report waives further judicial review of the point.” (quoting Cephas v.
Nash, 328 F.3d 98, 107 (2d Cir. 2003))); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis,
Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party waives appellate
review of a decision in a magistrate judge’s report and recommendation if the party fails to file
timely objections designating the particular issue.” (citations omitted)).
The Court has reviewed the unopposed R&R and, finding no clear error, the Court adopts
Judge Orenstein’s R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1). The Court denies
Plaintiffs’ motion for summary judgment, Toppin’s motion for summary judgment, and Sapphire
and Simos’ motion for summary judgment.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: March 29, 2017
Brooklyn, New York

4