Qiang Tu v Li Shen (2021 NY Slip Op 00215) Qiang Tu v Li Shen 2021 NY Slip Op 00215 Decided on January 14, 2021 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 14, 2021 529588 [*1]Qiang Tu, Respondent, vLi Shen, Also Known as Tom Shen, et al., Appellants. Calendar Date: November 19, 2020 Before: Garry, P.J., Egan Jr., Aarons and Pritzker, JJ. Law Offices of Chen & Associates, PC, New York City (Paul E. Davenport of Whiteman Osterman & Hanna LLP, Albany, of counsel), for appellants. Woods Oviatt Gilman LLC, Rochester (Robert D. Hooks of counsel), for respondent. Egan Jr., J. Appeal from an order of the Supreme Court (Baker, J.), entered June 27, 2019 in Chemung County, which, among other things, (1) denied a motion by defendant Finger Lake LLC to, among other things, vacate a default judgment, and (2) denied a motion by defendants Li Shen and Suwei Yang to dismiss the complaint against them. In 2015, plaintiff, a Chinese national who resides in Newark, Delaware, was approached by an acquaintance regarding a potential opportunity for him to obtain an EB-5 Immigrant Investor Visa by investing $520,000 to purchase an equity interest in defendant Finger Lake LLC, a business entity purportedly created for the purpose of developing a four-story, 100-unit Best Western hotel in the Town of Horseheads, Chemung County.[FN1] Plaintiff subsequently met with defendants Li Shen and Suwei Yang (hereinafter collectively referred to as the individual defendants), the purported sole members of Finger Lake, who represented that they had franchise rights to build a Best Western hotel, were fully capitalized to complete the project and that construction of the hotel would be completed by June 2016 and be operational shortly thereafter. The individual defendants indicated that $20,000 of plaintiff's $520,000 investment would constitute an administrative fee to cover the costs associated with applying for plaintiff's "green card application" and the remaining $500,000 would purchase plaintiff's equity stake in Finger Lake. Based on these representations, and following certain additional negotiations, on August 18, 2015, plaintiff and the individual defendants executed a share transfer supplemental agreement memorializing the terms of their agreement, which provided, among other things, that Finger Lake and the individual defendants would assume full responsibility for building and managing the hotel project while plaintiff would retain the right to recover his $520,000 investment should he elect not to pursue an immigration visa or was otherwise unable to obtain same. On or about August 28, 2015, the parties subsequently executed a membership agreement. Following execution of these agreements, plaintiff tendered $520,000 to defendants. In September 2018, plaintiff's visa application was denied and, as a result, plaintiff sought return of his investment from defendants. When no response from defendants was subsequently forthcoming, in January 2019, plaintiff commenced this action, asserting a cause of action for fraud against the individual ...
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