Wilson et al v. Pasquale's Damarino's, Inc. et al

Filing 414

ORDER denying 361 Motion to Appoint; denying 361 Motion to Attach; denying 361 Motion for Preliminary Injunction. For the reasons stated above, Plaintiffs' motion is denied in its entirety. The Clerk of Court is directed to terminate the motion (Dkt. No. 361). SO ORDERED. (Signed by Judge Paul G. Gardephe on 9/23/2019) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GENESIS WILSON, ALIAKSANDRA
KULESH, NATALIA ZEMTSOVA,
YULIY A SYNYUK, TATIANA
LISOVSKA YA, MOHAMMED MOIN
UDDIN, KSENIA ARTATES,
ABDO ULAYE NDIA YE, SANTIAGO
ORTIZ, and ABIGAIL HENNESSY,

ORDER
10 Civ. 2709 (PGG)

Plaintiffs,
- against PASQUALE'S DAMARINO'S, INC.,
IZABELA MARINO, PETER
ROSSIGNUOLO a/k/a PETER
ROSSI, CRAIG PERRI, GIANCARLO
MONTESARCHIO, SALVATORE
ABBATE, FRED MARINO, 220 WEST
RESTAURANT CORP., JOSEPH
MARINO a/k/a GIUSEPPE MARINO,
KAVITA JAGNARINE a/k/a KAY
JAGNARINE, PIATT! ITALIAN! LLC, and
FRATELLI ITALIAN! LLC,
Defendants.

PAUL G. GARDEPHE, U.S.D.J.:
In this putative class action, Plaintiffs - former employees of DaMarino
Restaurant in midtown Manhattan - bring claims for sexual harassment, wage and hour
violations, and retaliation against Defendants - individuals and corporations associated with
DaMarino Restaurant. Pending before the Court is Plaintiffs' motion for (1) a preliminary
injunction "enjoining Defendants [] from managing or transferring any assets from DaMarino
Restaurant [] pending the outcome of this litigation"; (2) the appointment of a receiver for
Defendants Pasquale's DaMarino's, Inc. ("DaMarino's, Inc."), 220 West Restaurant Corp., Piatti

Italiani LLC ("Piatti"), and Fratelli Italiani LLC ("Fratelli") (collectively "Corporate
Defendants"); and (3) in the alternative to receivership, the attachment of the Corporate
Defendants' assets. (Dkt. No. 361) For the reasons set forth below, Plaintiffs' motion will be
denied.
BACKGROUND

I.

PLAINTIFFS' ALLEGATIONS IN THE SIXTH AMENDED COMPLAINT
Plaintiffs are former waitresses, bartenders, and busboys of DaMarino Restaurant,

an Italian restaurant located at 220 West 49th Street in Manhattan. (SAC (Dkt. No. 274) ,r,r 4-5,
23, 25, 27-35)
Defendants DaMarino's, Inc. and 220 West Restaurant Corp. are New York
corporations, and together owned DaMarino Restaurant until 2014. (Id.

,r,r 4, 23,209)

According to the SAC, DaMarino' s Inc. operated the restaurant and employed Plaintiffs, and 220
West Restaurant Corp. "owned the liquor license, the lease for the space[,] and all moveable
property." (Id.

,r 43)

Defendants Piatti and Fratelli are New York corporations.

ilih ,r,r 11, 12)

The SAC alleges that Piatti became the corporate owner ofDaMarino Restaurant in 2014, and
Fratelli became the corporate owner of DaMarino Restaurant in 2015. (Id.

,r,r 209, 212)

Defendants Izabela Marino, Peter Rossignuolo, Craig Perri, Giancarlo
Montesarchio, Salvatore Abbate, Fred Marino, and Joseph Marino were - along with Pasquale
Marino, a former defendant who died on November 15, 2015 - the "officers, shareholders,
managers, employees, and/or majority owners" ofDaMarino's Inc. and 220 West Restaurant
Corp. (Id.

,r,r 4, 16)

Defendant Kavita Jagnarine is an individual who - along with Perri, Fred

Marino, and Joseph Marino - is an "officer, director, manager, and/or majority shareholder" of
Piatti and Fratelli. (Id.

,r 17)

Jagnarine and Perri are "either married or living in concubinage,"

and Jagnarine currently manages DaMarino Restaurant on Perri's behalf. (Id.

2

,r,r 14,219)

According to the SAC, Plaintiffs (1) were paid below minimum wage, (2) were
not paid a premium rate for the overtime hours they worked, and (3) did not receive the tips they
were entitled to. (Id.~~ 54, 59-67, 70) The SAC further alleges that Plaintiffs were subject to
constant sexual harassment by Defendant Pasquale Marino. In 129 paragraphs (id.~ 74-203), the
SAC details Pasqual Marino's behavior, alleging that he was a "sexual predator" who "treated
the restaurant as his own personal dating service and a place where he could indulge his
unwholesome desires." (Id.~~ 75, 95) The SAC alleges that Defendants "were fully aware, or
should have been aware, of [Pasquale Marino's] scandalous conduct but not only failed to
prevent it but on numerous occasions public[ly] condoned, and even participated in, such
conduct." (Mb ~ 81)
On numerous occasions, Plaintiffs complained that they were being underpaid,
and were upset by Pasquale Marino's behavior. (Id.~ 147) The SAC alleges that Plaintiffs
Zemtsova, Wilson, Kulesh, Synyuk, Lisovskaya, and Uddin were fired or forced to quit in
retaliation for these complaints. (Id.~~ 149-203)
Plaintiffs commenced this action on March 26, 2010. (Dkt. No. 1) The SAC
alleges that Pasquale Marino "engaged in numerous litigation maneuvers [to] delay the
resolution of the instant lawsuit." (SAC (Dkt. No. 274) ~ 204) "Consequently, on March 23,
2013 the Court granted Plaintiffs' motion for default[] against [Pasquale Marino and]
DaMarino's Inc." on four Causes of Action in the Fourth Amended Complaint. (Id.)
Also in 2013, another former waitress at DaMarino Restaurant filed a separate
complaint against Pasquale Marino and DaMarino's, Inc. - Mironova v. Pasquale's DaMarino's
Inc. et al., 13 Civ. 1663 (TPG)- raising sexual harassment and hostile work environment claims.

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(Id. ,i 205) On May 2, 2014, a jury returned a $2.5 million verdict against Pasquale Marino and
DaMarino's Inc. (Id. ,i 205)
After the default judgment in this action and the jury verdict in Mironova,
Defendants Izabela Marino, Rossignuolo, Perri, Montesarchio, Abbate, and Fred Marino
"engaged in asset shifting to protect their ownership of DaMarino Restaurant." (Id. ,i 208) In
June 2014, the individual Defendants created Defendant Piatti, and "transferred assets of
Defendant 220 West [Restaurant Corp.] to Defendant Piatti, including without limitation, [the]
two most important assets - the liquor license and the lease for the restaurant space" - "without
consideration or for nominal consideration." @ ,i 209) They then siphoned DaMarino's Inc.'s
restaurant profits to Piatti "through bogus contracts and equipment leases, at all times leaving
DaMarino's [Inc.] undercapitalized to avoid creditors." (Id. ,i 210)
On June 9, 2015, the individual Defendants created Defendant Fratelli, and
"shifted substantial assets from Defendant Piatti to Defendant Fratelli on a no-consideration or
nominal consideration basis, including the liquor license and the lease for the restaurant space."
(Id. ,i, 212-13) "DaMarino Restaurant [is operated] in such a manner that all of the revenue
minus expenses is immediately siphoned off from the entity that nominally operates the
restaurant through a series of bogus contracts, leases and payments." 1 (Id. ,i 213)
"Despite creating [Piatti and Fratelli], the [i]ndividual Defendants meticulously
preserved the ambiance of DaMarino Restaurant," and Pasquale DaMarino continued to manage
the restaurant until his death. (Id. ,i 214) Other than a brief closure for renovations in 2016,
DaMarino Restaurant has operated continuously since this action began. (Id. ,i,i 215-26)

1

The SAC uses the passive voice here; accordingly, it is not clear to whom or to what the
restaurant's profits are "siphoned."

4

The SAC was filed on March 9, 2018. It asserts claims for ( 1) breach of contract
against the Corporate Defendants; (2) quantum meruit against all Defendants; (3) violations of
the New York Labor Law ("NYLL") against all Defendants; (4) violations of the Fair Labor
Standards Act ("FLSA") against all Defendants; (5) sexual harassment and retaliation in
violation of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law,
and the New York City Human Rights Law against all Defendants; and (6) negligent supervision
of Pasquale Marino against the Corporate Defendants. 2 (Id. ,r,r (227-329)

II.

PLAINTIFFS' MOTION FOR A PRELIMINARY
INJUNCTION, RECEIVERSHIP AND/OR ATTACHMENT
On January 22, 2019, Plaintiffs filed a motion for a preliminary injunction, the

appointment of a receiver, and/or attachment. (Dkt. No. 361) Plaintiffs contend that Defendants
have engaged in a pattern of behavior whereby they fraudulently transfer the assets of DaMarino
Restaurant between different corporate entities, all in an effort to "hide assets from Plaintiffs."
(Pltf. Br. (Dkt. No. 363) at 2) Plaintiffs contend that they are entitled to a preliminary injunction
enjoining the individual defendants from managing or transferring the assets of DaMarino
Restaurant, and to the appointment of a receiver to oversee the assets of the corporate defendants
to prevent further fraudulent transfers. (Id.) In the alternative to receivership, Plaintiffs request
that the Court attach the assets of the corporate defendants to prevent further fraudulent transfers.
(Id.)
In support of their motion, Plaintiffs filed the following materials: (1)
declarations from Plaintiffs Genesis Wilson, Natalia Zemtsova, and Yuliya Synyuk, as well as
third party and former restaurant employee Tatiana Mironova, regarding their experiences at

2

The SAC also raises claims for intentional infliction of emotional distress and assault and
battery against Pasquale Marino. (Id. ,r,r 330-44) As noted above, Pasquale Marino is deceased
and is no longer a defendant in this action.

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DaMarino Restaurant (Dkt. Nos. 362-2, 362-3, 362-4, 362-5); (2) this Court's order entering a
default judgment against Pasquale Marino and DaMarino's Inc. on Plaintiffs' NYLL and FLSA
claims (Dkt. No. 362-6); (3) the trial transcript from Mironova v. Pasquale's DaMarino's, Inc.,
13 Civ. 1663 (TPG) and the jury verdict form in that case (Dkt. Nos. 362-7, 362-8); (4) a
newsletter referring to Defendant Perri as a ''host" of DaMarino Restaurant (Dkt. No. 362-9); (6)
an affidavit by DaMarino Restaurant's landlord prepared in connection with a separate action,
attaching two e-mails from Defendant Perri to the landlord, including one requesting that the
restaurant's lease be transferred from Piatti to Fratelli in order to "free Pasq[u]ale and his family
from any liability associated with DaMarino Italian Restaurant" (Dkt. No. 364-2); (7) Facebook
posts by an account in the name "Craig Perri" stating that he has a restaurant in Times Square
(Wisiniewski Deel. (Dkt. No. 364) 11 10, 12); (8) an account of Plaintiffs' attempts to serve
Defendant Perri with the SAC (id. 1113-16); (9) an answer to a complaint in a separate action
filed by Defendants Fratelli, Perri, and Jagnarine (Dkt. No. 364-4); and (10) an e-mail sent by
defense counsel to Plaintiffs' counsel on November 26, 2018, requesting consent for Defendant
Perri to file an Answer to the SAC (Dkt. No. 364-5). Plaintiffs make no effort to explain how
these materials justify the relief they seek in the instant motion.
Defendants Fratelli, Perri, and Jagnarine filed an opposition to Plaintiffs' motion.
(Def. Opp. (Dkt. No. 366)) Defendants contend, inter alia, that Plaintiffs have not demonstrated
that any assets were transferred to Fratelli with fraudulent intent. Defendants argue that
Plaintiffs have not offered evidence "that there was or is fraudulent intent on behalf of Defendant

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Fratelli or that Fratelli has acted in any manner to defraud Plaintiffs or that Fratelli ... is in the
process of selling the restaurant's assets." (Def. Opp. (Dkt. No. 366) at 9) 3
In lieu of filing a reply brief, Plaintiffs submitted a brief prepared by a third party
- Tatiana Mironova - in a separate action: Fratelli Italiani LLC v. Tatiana Mironova, 18 Civ.
7013 (CM). In that case, Fratelli brought extortion claims against former DaMarino Restaurant
employee Mironova, who won a $2.5 million jury verdict against Pasquale Marino and
DaMarino's Inc. (Wisniewski Reply Deel. {Dkt. No. 364) ~ 4) In that action, Mironova moved
for attachment of Fratelli's assets, even though she was the defendant and had not brought a
cause of action against Fratelli. (Mironova Br. (Dkt. No. 364-1) at 6) Plaintiffs here have
submitted Mironova' s reply brief in support of her motion for attachment in Fratelli Italiani LLC
v. Tatiana Mironova, arguing that it "covers precisely the same issues as those that are raised in
this motion." (Wisniewski Reply Deel. (Dkt. No. 364) ~ 3). Mironova's motion for an
attachment was denied by Judge McMahon on April 11, 2019. (Dkt. No. 393-1)
DISCUSSION
I.

PRELIMINARY INJUNCTION
A court may issue a preliminary injunction only where
[first,] the plaintiff has demonstrated "either (a) a likelihood of success on the
merits or (b) sufficiently serious questions going to the merits to make them a fair
ground for litigation .... " Second, the court may issue the injunction only if the
plaintiff has demonstrated "that he is likely to suffer irreparable injury in the
absence of an injunction." ... Third, a court must consider the balance of hardships
between the plaintiff and defendant and issue the injunction only if the balance of

3

In support of their opposition, Defendants filed: (1) a record from the New York Department
of State, Division of Corporations, stating that Fratelli was incorporated in New York on June 9,
20 I 5, and listing Defendant Jagnarine as a point of contact (Dkt. No. 365-2); (2) a July 29, 2015
asset purchase agreement between Defendants Piatti and Fratelli, stating that Fratelli would
purchase the assets of DaMarino Restaurant for $80,000 (Dkt. No. 365-3); and (3) Plaintiffs'
response to Defendants' first request for discovery documents (Dkt. No. 365-4).
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hardships tips in the plaintiffs favor. Finally, the court must ensure that the "public
interest would not be disserved" by the issuance of a preliminary injunction.
Salinger v. Colting, 607 F.3d 68, 79-80 (2d Cir. 2010) (citations omitted).
"A showing of irreparable harm is 'the single most important prerequisite for the
issuance of a preliminary injunction."' Faiveley Transp. Malmo AB v. Wabtec Corp .. 559 F.3d
110, 118 (2d Cir. 2009) (quoting Rodriguez v. DeBuono, 175 F.3d 227,234 (2d Cir.1999)).
'"To satisfy the irreparable harm requirement, Plaintiffs must demonstrate that absent
a preliminary injunction they will suffer an injury that is neither remote nor speculative, but
actual and imminent, and one that cannot be remedied if a court waits until the end of trial to
resolve the harm."' Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir.
2007) (quoting Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005) (internal
citations omitted)). "Where there is an adequate remedy at law, such as an award
of money damages, injunctions are unavailable except in extraordinary circumstances." Moore
v. Consol. Edison Co. ofN.Y., 409 F.3d 506, 510 (2d Cir. 2005).
Although the general rule is that a monetary injury does not constitute irreparable
harm, there is an exception in "situations involving obligations owed by insolvents." Brenntag
Int'l Chems., Inc. v. Bank of India, 175 F.3d 245, 250 (2d Cir. 1999). "Before a court will grant
relief under this exception, however, the plaintiff 'must show that the risk of insolvency is likely
and imminent."' LG Capital Funding LLC v. Vape Holdings, Inc., No. 16 Civ. 2217 (CBA)
(LB), 2016 WL 3129185, at *4 (E.D.N.Y. June 2, 2016) (citation omitted). "The moving party
carries a heavy burden in demonstrating current or imminent insolvency at the preliminary
injunction stage, and courts in this Circuit have 'denied applications for a preliminary injunction,
even in the face of evidence that a defendant was in very weak financial condition."' Coastal
Inv. Partners, LLC v. DSG Glob., Inc., No. 17 CIV. 4427 (DAB), 2017 WL 3605502, at *3

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(S.D.N.Y. July 31, 2017) (quoting Union Capital LLC v. Vape Holdings, Inc., No. 16-CV-1343
(RJS), 2016 WL 8813991, at *3 (S.D.N.Y. Mar. 9, 2016); and citing LG Capital Funding, LLC
v. PositiveID Corp., No. 17 Civ. 1297 (NGG) (SMG), 2017 WL 2556991, at *6 (E.D.N.Y. June
12, 2017); LG Capital Funding, LLC, 2016 WL 3129185, at *4).
Here, Plaintiffs acknowledge that they seek money damages. (Pltf. Br. (Dkt. No.
363) at 11) Plaintiffs argue, however, that a preliminary injunction is necessary because
"Plaintiffs clearly will suffer irreparable harm if Defendants are allowed to continue to
fraudulently transfer assets away from the Corporate Defendants." (Id.)
Plaintiffs have offered no evidence that any of the Defendants are insolvent,
including the Corporate Defendants. Moreover, Plaintiffs have not offered evidence sufficient to
demonstrate that DaMarino's Inc. and 220 West Restaurant Corp. ever owned the assets of
DaMarino Restaurant. Nor have Plaintiffs offered evidence that Defendants transferred assets
from DaMarino' s Inc. and 220 West Restaurant Corp. to Piatti. Although this case has been
pending for nine years, Plaintiffs cite only to the SAC in "support" of these allegations. The
SAC, of course, consists of mere allegations, and does not constitute proof that the asset transfers
about which Plaintiffs complained actually occurred. (See id. at 7 (citing the SAC))
Ironically, the most compelling evidence that an asset transfer between Piatti and
Fratelli took place has been submitted by Defendants. The asset purchase agreement between
Piatti and Fratelli states that Fratelli purchased the assets of DaMarino Restaurant from Piatti in
2015 for $80,000. (Dkt. No. 364-3) Plaintiffs have also submitted an affidavit from DaMarino
Restaurant's landlord - prepared in 2017 for a separate action - stating that Defendants Fratelli,
Perri, and Jagnarine "assum[ ed] control of' DaMarino Restaurant, and claimed to hold a lease
for the space. (McNamara Aff. (Dkt. No. 364-2) ~ 2) Attached to that affidavit is an August 27,

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2015 email in which Defendant Perri requests that the lease for DaMarino Restaurant be
transferred from Piatti to Fratelli in order to "free Pasq[ u ]ale and his family from any liability
associated with DaMarino Italian Restaurant." (Dkt. No. 364-2) There is no evidence that this
lease was actually transferred, however.
In any event, as stated above, Plaintiffs have not proffered evidence that (1) the
assets of DaMarino Restaurant were originally owned by DaMarino's Inc. and 220 West
Restaurant Corp., as Plaintiffs allege; or (2) any of the Defendants are insolvent. Without proof
of the former, there is no basis for the relief Plaintiffs seek, because Plaintiffs' argument is
premised on the notion that assets of DaMarino Restaurant were fraudulently transferred form
DaMarino's Inc. and 220 West Restaurant Corp. to Piatti to Fratelli. Without proof of the latter,
Plaintiffs cannot meet their "heavy burden" of demonstrating irreparable harm.
Accordingly, Plaintiffs' motion for a preliminary injunction will be denied.

II.

RECEIVERSHIP
Plaintiffs have moved for the appointment of a receiver for DaMarino's Inc., 220

West Restaurant Corp., Piatti, and Fratelli, pursuant to Fed. R. Civ. P. 66.
"A federal court has the power in equity to appoint a receiver in order to protect a
party's interest in property." Varsames v. Palazzolo, 96 F. Supp. 2d 361, 365 (S.D.N.Y. 2000)
(citing Fed. R. Civ. P. 66). "The appointment of a receiver is considered to be an extraordinary
remedy, and should be employed cautiously and granted only when clearly necessary to protect
plaintiffs interests in the property." Rosen v. Siegel, 106 F.3d 28, 34 (2d Cir. 1997) (internal
citations omitted). "[T]he decision of whether to appoint a receiver is one reserved to the
discretion of the district court judge." Ryan Beck & Co. v. Daly Holdings, Inc., No. 06 Civ.
5349 (RCC), 2006 WL 3775964, at *2 (S.D.N.Y. Dec. 19, 2006).

10

"The following factors are relevant to establishing the need for a receivership:
'Fraudulent conduct on the part of defendant; the imminent danger of the property
being lost, concealed, injured, diminished in value, or squandered; the inadequacy
of the available legal remedies; the probability that harm to plaintiff by denial of
the appointment would be greater than the injury to the parties opposing
appointment; and, in more general terms, plaintiffs probable success in the action
and the possibility of irreparable injury to his interests in the property."'
U.S. Bank Nat. Ass'n v. Nesbitt Bellevue Prop. LLC, 866 F. Supp. 2d 247, 249-50 (S.D.N.Y.
2012) (quoting Varsames, 96 F.Supp.2d at 365 (quoting 12 Wright & Miller, Federal Practice &
Procedure § 2983 (1999))).
Plaintiffs argue that the corporate defendants should be placed in receivership
because "Defendants made several asset transfers with the express purpose of avoiding judgment
in this litigation and the Mironova matter, including transferring [DaMarino] Restaurant's assets
through a series of business entities, siphoning cash to Izabela [Marino] and other confederates,
transferring the nominal ownership to friends and relatives, and other schemes." (Def. Br. (Dkt.
No. 363) at 12-13) According to Plaintiffs, this behavior "give[s] rise to the inference of
fraudulent intent." (Id. at 13)
Plaintiffs have not, however, provided factual support for these allegations.
While there is evidence that Fratelli purchased the assets associated with DaMarino Restaurant
from Piatti, there is no evidence that these assets were originally owned by DaMarino, Inc. or
220 West Restaurant Corp. There is also no evidence that the purchase price Fratelli paid for the
assets it obtained from Piatti was umeasonable. Finally, Plaintiffs' brief does not discuss any of
the other factors this Court must consider in deciding whether to appoint a receiver.
Accordingly, Plaintiffs' motion to appoint a receiver will be denied.

III.

ATTACHMENT
Plaintiffs have also moved for an attachment of the assets of the Corporate

Defendants. (Pltf. Br. (Dkt. No. 363) at 13)

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"'Prejudgment attachment is a provisional remedy to secure a debt by preliminary
levy upon the property of the debtor in order to conserve that property for eventual execution.'"
DLJ Mortg. Capital, Inc. v. Kontogiannis, 594 F. Supp. 2d 308,318 (E.D.N.Y. 2009)
(quoting Monteleone v. Leverage Group, No. 08 Civ. 1986 (CPS) (SMG), 2008 WL 4541124, at
*6 (E.D.N.Y. Oct. 7, 2008); citing Michaels Elec. Supply Corp. v. Trott Elec. Inc., 231 A.D.2d
695 (2d Dep't 1996)). Under Rule 64 of the Federal Rules of Civil Procedure, attachment is
available as a remedy "under the law of the state where the court is located." Fed. R. Civ. P. 64.
Under New York law, a party seeking prejudgment attachment must show
by affidavit and such other written evidence as may be submitted, [(1)] that there is
a cause of action, [(2)] that it is probable that the plaintiff will succeed on the merits,
[(3)] that one or more grounds for attachment provided in section 6201 exist, and
[(4)] that the amount demanded from the defendant exceeds all counterclaims
known to the plaintiff.
N.Y. C.P.L.R. § 6212(a).
As to the grounds for attachment, Plaintiffs invoke N.Y. C.P.L.R. § 6201(3),
which provides:
An order of attachment may be granted in any action ... 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: .... the defendant, with
intent to defraud his creditors or frustrate the enforcement of a judgment that might
be rendered in plaintiffs favor, has assigned, disposed of, encumbered or secreted
property, or removed it from the state or is about to do any of these acts
Id.§ 6201(3).
"The provisional remedy of attachment is 'a harsh remedy which should be
construed strictly against those seeking to use it' and is 'discretionary with the trial court."'
Astra Oil Trading NV v. PRSI Trading Co. LP, No. 08 CIV. 10467 (NRB), 2008 WL 5429821,
at *4 (S.D.N.Y. Dec. 23, 2008) (quoting Thornapple Assocs., Inc. v. Sahagen, No. 06 Civ. 6412
(JFK), 2007 WL 747861, at *3 (S.D.N.Y. Mar. 12, 2007); citing Reading & Bates Corp. v. Nat'l

12

Iranian Oil Co., 478 F.Supp. 724, 726 (S.D.N.Y.1976)). "Thus, even if a plaintiff meets the
statutory requirements set forth in N.Y. C.P.L.R. §§ 6201[] and 6212(a), 'it would still be
possible to deny the harsh remedy of attachment."' Id. (quoting Thornock v. Kinderhill
~ ' 712 F. Supp. 1123, 1132 (S.D.N.Y. 1989)).
As discussed above, the only evidence of an asset transfer is the 2015 asset
purchase agreement between Piatti and Fratelli, in which Fratelli purchased from Piatti the assets
associated with DaMarino Restaurant. But Plaintiffs' request for an attachment is premised on
the notion that these assets were once owned by DaMarino's Inc. and/or 220 West Restaurant
Corp. As is also discussed above, Plaintiffs have not offered any evidence in support of this
allegation. Nor have they offered evidence that Fratelli or another Defendant "is about to"
"assign[]; dispose[] of, encumber[] or secret[]" property.
Accordingly, Plaintiffs have not shown that they are entitled to prejudgment
attachment, and their application will be denied.

CONCLUSION
For the reasons stated above, Plaintiffs' motion is denied in its entirety. The
Clerk of Court is directed to terminate the motion (Dkt. No. 361).
Dated: New York, New York
September 23, 2019
SO ORDERED.

Paul G. Gardephe
United States District Judge

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