Usov v. Lazar et al
Filing
22
OPINION re: 8 MOTION to Dismiss the Complaint filed by Marc Lazar, Marc Lazar Inc. Based upon the conclusions set forth above, Defendant's Motion to Dismiss is denied in part and granted in part, and Plaintiff's Motion to Compel discovery is granted. Leave to replead within twenty days is granted. (Signed by Judge Robert W. Sweet on 6/18/2013) (ft)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- --- -----------------------------x
GREGORY USOV,
Plaintiff,
13 Civ. 818
(RWS)
- against
OPINION
MARC LAZAR and MARC LAZAR INC.,
Defendants.
---------- --- ------------------x
A P PEA RAN C E S:
USOV
THE ROTH LAW FIRM, P.L.L.C.
295 Madison Avenue, 22nd Floor
New York, New York 10017
By:
chard A. Roth, Esq.
s Marc Lazar and Marc Lazar
Inc.
ROBINSON BROG LEINWAND
GREENE GENOVESE & GLUCK P.C.
875 Third Avenue, 9th
oor
New York, New York 10022
By:
David C. Burger, Esq.
Michael A. Eisenberg, Esq.
Sweet, D.J.
Defendants Marc Lazar ("Mr. Lazar") and Marc Lazar Inc.
("Lazar Inc.")
(collectively, the "Defendants") have moved
pursuant to Rule l2(b) (6) of the Federal Ru
of Civil
Procedure to dismiss the complaint filed by Plaintiff Gregory
Usov ("Plaintiff" or "Mr. Usov").
discovery pr
Plaintiff moves to compel
to the preliminary conference on this matter set
for September 18, 2013.
For the reasons set forth below,
Defendants' Motion to Dismiss is denied in part and granted in
part and Plaintiff's Motion to Compel Discovery is granted.
I. PRIOR PROCEEDINGS
The Plaintiff initiated these actions against Defendants
Mr. Lazar and Lazar Inc. with the filing of the Summons and
Complaint on February 5, 2013.
Plaintiff's Complaint alleges
that Plaintiff and Defendants entered into an agreement whereby
Plaintiff owned 66% of a certain diamond col
ction (the "large
diamond collection" or "large collection") and that Defendants
breached this agreement by refusing to pay pro
ts of any sales
of diamonds in the large collection or by turning over the
remaining inventory, and that as a result of this breach,
Plaintiff has and will continue to suffer damages from
Defendants' unjust enrichment in retaining the large collection
1
(See Complaint
and profits owed.
66% of all prof
~~
29-36.)
Plaintiff seeks
s from any diamonds of the large collection
that Defendants have already sold as well as compensation for
66% of the remainder of the collection, punitive damages and
attorneys' fees or, in the alternative, return of the remainder
(See
of the large diamond collection.
.)
On April 1, 2013, Defendants filed a Motion to Dismiss
its entirety.
Plaintiff's complaint
This motion was marked
ly submitted on May 22, 2013.
On June 4, 2013, Plaintiff filed a Motion to Compel
discovery.
This motion was marked fully submitted on June 14,
2013.
II .
BACKGROUND
In 2006, Pinnacle Trading Limited ("Pinnacle") was
established.
(Compl.
of Pinnacle.
(Id. )
for holding t
~
9.)
Mr. Usov was t
sole shareholder
In or about 2006, Defendants, in exchange
large diamond collection at issue and providing
insurance coverage, were granted 33% ownership interest in the
collection.
(See Compl.
~
10.) In approximately 2007, Mr. Usov
created Mervia Investments SA ("Mervia"), of which Mr. Usov was
the sole shareholder, and transferred Pinnacle's assets,
including the interests
the large diamond collection, to
2
Mervia.
(Compl. 1 12.) On or about August 23, 2011, Mr. Lazar
signed a memorandum confirming that t
large diamond collection was trans
personally.
(Compl. 1 13.)
66% interest in the
rred from Mervia to Mr. Usov
Mr. Usov attached a schedule to
this memorandum which confirmed a list of all the diamonds in
the large collection.
(Id.)
In 2002, Mr. Usov cosigned five diamonds
(the "small
diamond collection") to Defendants, which Defendants agreed to
liver all proceeds of any sales directly to Mr. Usov.
sell and
(See Compl. 1 15.)
In 2010,
Defendants returned four diamonds
of the small collection but kept the fifth diamond, a 1.75 Carat
diamond.
(Compl. 1 16.)
By October 19, 2010,
Defendants
therefore had in their possession 34 diamonds belonging to Mr.
Usov, including the large diamond collection consisting of 33
diamonds and the 1.75 Carat diamond remaining from the small
diamond col
ion.
(Compl. 1 17.)
On March 25, 2012,
Defendants informed Elena Harris
("Ms.
Harris"), Mr. Usov's daughter, that they had sold a diamond from
the large collection for approximately $125,000.
Despite requests,
(Compl. 1 18.)
Defendants did not provide any documentation
or information concerning the sale, the customer, or the price
of the transaction.
(Id.)
On or about April 25, 2012,
Defendants informed Ms. Harris that they had sold two additional
3
diamonds, one from the large diamond collection and the 1.75
Carat diamond from the small collection, for $4.65 million and
$350,000, respectively.
~
(Compl.
19.)
Based on the relevant
agreements, Defendants were obligated to pay to Mr. Usov two
thirds of the proceeds of the diamond sold from the large
diamond collection, or $3.09 million, and the entire proceeds of
the sale of the 1.75 Carat diamond from the small collection.
Defendants did not pay any profits from these diamond sales to
Plaintiff, and continued to refuse to provide Ms. Harris with
any documentation or information about these sales whatsoever.
(Compl.
~
21.)
alleges that
During this time through June 16, 2012, Mr. Usov
made several attempts to contact Mr. Lazar
directly regarding these profits owed, including leaving
messages on his voicemail, and that Mr. Lazar never responded to
any of his attempts.
(Compl.
~
22.)
On or about July 23, 2012, October 17, 2012 and October 22,
2012, Ms. Harris met with Mr. Lazar in further attempts to
obtain proceeds of the sale of the diamonds and to deliver the
remaining diamonds, and additionally to obtain an independent
assessment of the value of the remaining diamonds in the large
collection.
(Compl.
~
23.) On October 17, 2012, Ms. Harris and
Mr. Lazar, with the assistance of others, derived a valuation
for the remaining pieces in inventory of the large diamond
4
collection, calculating the total owed by Mr. Lazar to Plainti
at $3.5 million, in addition to the profits from the diamonds
already sold.
(Compl.
~
26.)
To date, Defendants have not paid
Plaintiff any profits from the diamonds sold, or returned any of
the remai
ng diamonds from the large collection still in
(Compl.
Defendants' possession.
~
intiff further
27.)
leges that Defendants continue to di
lay the large diamond
collection in industry shows in an effort to build name
recognition and reputation despite Mr. Usov's repeated requests
that the diamonds, or prof
In response,
s, be returned.
~
(Compl.
28.)
Defendants assert that Lazar Inc. is the so
owner of the large diamond collection, having purchased the
large diamond
lection from Andre Runte
(Mem. at 2.)
7, 2005.
("Mr. Runte")
on April
In contrast, Ms. Harris contends that in
or around 1997, Ms. Harris's then husband, Harvey Harris
("Mr.
Harris"), entered into an agreement with Mr. Runte regarding the
large diamond collection .
. ");
~
6.)
(Affidavit of Elana Har
s
("Harris
After Mr. Runte brought arbitration proceedings
against Mr. Harris regarding the large diamond collection in
1997, which resulted in a judgment against Mr. Harris, Mr.
Harris and Mr. Lazar agreed to purchase the stones from Mr.
Runte with money from Mr. Harris covering two-thirds of the
purchase price and Mr. Lazar covering one-third.
5
(Id.
~~
7-8.)
During this t
, Mr. Harris had terminal Leukemia,
him concerning the purchase
therefore asked Mr. Lazar to act
of the large
lection.
(Id.
9.)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?