Incredible Investments Limited v. Parlato et al

Filing 28

DECISION AND ORDER DENYING Plaintiff Incredible Investments Limited's Motion for an Expedited Ex Parte Hearing on its Motion for an Ex Parte Order of Attachment; DENYING Plaintiff's Motion for an Ex Parte Order of Attachment; DIRECTING Plaintiff to file all papers submitted to the Court ex parte in support of its motions no later than 9/11/2009. Signed by William M. Skretny U.S.D.J. on 8/31/2009. (MEAL)

UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF NEW YORK

INCREDIBLE INVESTMENTS LIMITED, Plaintiff, v. 09-CV-576S FRANK PARLATO, JR., et al., Defendants. DECISION AND ORDER

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Plaintiff Incredible Investments Limited ("IIL") has submitted two ex parte motions

to the Court: a Motion for an Ex Parte Order of Attachment, brought under Federal Rule of Civil Procedure 64 and New York Civil Practice Law and Rules § 6201, and a Motion for an Expedited Ex Parte Hearing on its Motion for an Ex Parte Order of Attachment, under Fed. R. Civ. P. 6(d)1 and Local Rule of Civil Procedure 7.1(d). 2. IIL is seeking an order of attachment against the property of Defendants Frank

Parlato, Jr. ("Parlato") and Whitestar Development Corporation ("Whitestar").2 (Bloom Decl. ¶ 11.) 3. IIL's counsel refers to another case pending in this Court, Altissima Limited v. One

Rule 6(d) is not applicable to the relief requested, and the Court will treat this m o tio n as having b e e n brought pursuant to Local Rule 7.1(d) only. In support of its ex parte m o tio n , IIL has subm itte d the Declaration of Eric Bloom , Esq., with E x h ib its A-C, dated August 5, 2009; Declaration of Shm u e l Shm u e li, dated August 5, 2009; Affidavit of Kelly G. Besaw, with Exhibits 1-2, dated August 4, 2009; Affidavit of W illia m P. Zenosky, dated August 4, 2 0 0 9 ; Affidavit of Rita C. Marino-W e ile r , dated August 5, 2009; and a Mem o r a n d u m of Law. The Shm u e li D e c la r a tio n also incorporates by reference his Declaration dated August 5, 2009 and subm itte d to the C o u r t in support of a m o tio n for an ex parte order of attachm e n t in an action brought by a different plaintiff a g a in s t Parlato and W h ite s ta r , am o n g others, Altissim a Lim ite d v. One Niagara LLC, 08-CV-756S.
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Niagara LLC, 08-CV-756S, brought against several of the same defendants named here, including Parlato and Whitestar. Counsel states his understanding that Altissima has brought its own ex parte motion for an order of attachment, declares that IIL has a similar interest in attaching the same assets for essentially the same reasons, and requests that an order of attachment be granted in favor of IIL, as well. (Bloom Decl. ¶¶ 4-5.) Like Altissima, IIL seeks to prevent Parlato and Whitestar from transferring any interest in W hitestar or non-party One Niagara LLC,3 based on the belief that Parlato will abscond with proceeds of a transfer beyond this Court's jurisdiction. (Id.¶¶ 6-10; Shmueli Altissima Decl. ¶¶ 4-6, 8; Marino-Weiler Aff. ¶ 4; Zenosky Aff. ¶ 5.) 4. Shmuel Shmueli, Executive Vice President of IIL, adopts his Altissima Declaration

"in support of the application in this case insofar as it states the facts supporting the granting of an order of attachment." (Shmueli Decl. ¶ 4). The relevant facts, drawn from that declaration and a supplemental Shmueli declaration not incorporated here, are fully set forth in the Court's decision on Altissima's motion for an order of attachment. Familiarity with those facts is presumed and will not be repeated here. Other than specifically alleging claims for breach of fiduciary duties and the duty of loyalty by Parlato and Whitestar vis-a-vis Whitestar's membership in One Niagara LLC, which were alluded to by Altissima, IIL advances no independent ground for seeking an order of attachment. 5. Thus, for the reasons stated in the Altissima Decision and Order, IIL's Motions for

an Ex Parte Order of Attachment and for an Expedited Ex Parte Hearing on its Motion for an Ex Parte Order of Attachment are denied.

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This entity, of which IIL is a m e m b e r , is a defendant in the Altissim a case.

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V. ORDERS IT HEREBY IS ORDERED that Plaintiff Incredible Investments Limited's Motion for an Expedited Ex Parte Hearing on its Motion for an Ex Parte Order of Attachment is DENIED. FURTHER that Plaintiff's Motion for an Ex Parte Order of Attachment is DENIED. FURTHER that no later than September 11, 2009, Plaintiff shall file all papers submitted to the Court ex parte in support of its motions.

SO ORDERED. Dated: August 31, 2009 Buffalo, New York /s/William M. Skretny WILLIAM M. SKRETNY United States District Judge

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