Preview
iD: QU OUN PK DM INDEX NO. 710872/2017
NYSCEF BOC. NO. 331 RECEIVED NYSCEF: 03/30/2023
EXHIBIT 14
INDEX NO. 710872/2017
(FILED: QUEENS COUNTY CLERK 0373072023 12:55 PM
NYSCEF DOC. NO. 331 RECEIVED NYSCEF 08/86/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
intimin neem meen int ete Sper mitreseomemereeemem errr SK
PREL DEDAJ, on behalf of himself and as assignee of
ARBEN DEDAJ, and PRIME STEAK, LLC.
Index No. 710872/2017
Plaintiffs,
-against- NOTICE OF MOTION
TO
ZEF BERISHA, FREDDY MARKU, PETRIT DEMA, DISMISS COMPLAINT
WILLIAM V DECANDIDO. P.C..
and 46-11 BROADWAY, LLC, Motion 001
Defendant
MIEN SOR En SRmrTaannsmennoneannnneprennnagereess
weet aaa aee|
PLEASE TAKE NOTICE, that upon the annexed affirmation of Mark E. Housman,
Esq., dated October 2, 2017 and the exhibits annexed thereto, the affidavit of William
DeCandido swom to on October 2, 2017 and the exhibits annexed thereto and the accompanying
Memorandum of Law the undersigned will move this Court before the Centralized Motion Part,
Room 25, Supreme Court, 88-11 Sutphin Blvd. Jamaica, New York, on October 31, 2017 at 2:15
p.m. or as soon thereafter as counsel can be heard, for an Order to be entered by this Court
pursuant to CPLR 3211(a) (1), (3) & (7) dismissing the Complaint as against defendant William
V. DeCandido PC together with such other and different relief as this Court deems just and
proper.
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR Section 2214(b) answering
papers, if any, are to be served upon the undersigned no later than 7 days before the return date
of this motion.
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Dated: Tarrytown, New York
October 6, 2017
HOUSMAN & ASSOCIATES, P.C.
8 Kattan
J) go
150 White Plains Road, Suite 310
Tarrytown, New York 10591
(914) 524-8500
Attorneys for Defendant Decandido
TO
Joshua Sussman
Meltzer, Lippe, Goldstein& Breitstone, LLP
190 Willis Avenue
Mineola NY 11501
Attorneys for Plaintiffs
Acquista & Associates, PC
3775 Steinway Street
Suite 211
Astoria, NY 11103
Attorneys for Defendant 46-11 Broadway
Zimner Law, P.C
444 Madison Avenue, 4th Floor
NY NY 10022
Attorneys for Defendant Marku
ZEF BERISHA
7320 Austin Street.
Apt. 10
Forest Hills, New York 11375
PETRIT DEMA
6 1 Hunter Avenue
Yonkers, New York 16704
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
pears
Se ne era -X
PREL DEDAJ, on behalf of himself and as assignee of
ARBEN DEDAJ, and PRIME STEAK, LLC.
Index No. 710872/2017
Plaintiffs,
-against- AFFIRMATION IN
SUPPORT OF MOTION
ZEF BERISHA, FREDDY MARKU, PETRIT DEMA, TO DISMISS
WILLIAM V DECANDIDO. P.C..
and 46-11 BROADWAY, LLC,
Defendant
penne een ene nee ene e nnn nen e enn nen enee nnn nnes
Mark Housman, an attorney being duly admitted to practice law before the Courts
of this State, hereby affirms the following under penalties of perjury:
1 I am a shareholder and principal attorney in the law firm of Housman &
Associates, P.C., attorneys for Defendant Willian DeCandido P.C. (“DeCandido”) and
am fully familiar with the facts of this matter as they pertain to the instant motion based
upon my conversations with my client and my review of the file maintained by this
office.'
2 I submit this Affirmation in support of the instant motion which seeks an
Order to be entered by this Court pursuant to CPLR § 3211(a) (1), (3) & (7) dismissing
the Complaint in its entirety against DeCandido PC together with such other and different
relief as this Court deems just and proper.
3 This action was commenced on August 8, 2017 with the filing of a
Summons and Verified Complaint (hereafter the “Complaint”) a copy of which is
annexed as Exhibit A. As set forth in the accompanying Memorandum of Law, the
' For purposes of this affirmation William V DeCandido PC and William DeCandido will both be referred
to as “DeCandido.”
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Complaint’s two causes of action alleging legal malpractice against DeCandido are
deficient for numerous reasons and should be dismissed. There are no other causes of
action asserted against DeCandido.
4 The matter revolves around a venture in which some family members
purchased the interests of other family members in a restaurant (Prime Steak). On behalf
of the Company, Prime Steak, LLC, DeCandido “papered the deal” that was negotiated,
consummated and paid for prior to his involvement. He advised the parties to the
transactions to seek the advice of their own counsel. They chose not to do so.
5 The parties executed a document acknowledging that DeCandido
represented the Company in a limited capacity, that they had the opportunity to consult
with their own counsel, that they were proceeding with no representation and that they
waived any claims against DeCandido alleging a conflict of interest.
6 Plaintiffs do not dispute that they signed such document. Nevertheless,
they commenced this action claiming that DeCandido was their attorney, that he admitted
having a conflict of interest, that they were not told to seek the advice of their own
counsel and that they did not waive any claims against DeCandido. Plaintiff's claims are
belied by the documentary evidence and are frivolous. The Complaint mischaracterizes
the clear language of the documentary evidence and is nothing more than a hollow
attempt to have DeCandido pay for plaintiff's venture which apparently failed.
7 This litigation arises out of a business dispute between family members
plaintiff Prel Dedaj (“Dedaj”) and defendants, Zef Berisha (“Berisha”), Freddy Marku
(“Marku”), and Petrit Dema (“Dema”). Essentially, Dedaj purchased the interests of
Berisha and Marku in a restaurant in Queens, Prime Steak, LLC. Thereafter, plaintiff,
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Arben Dedaj (“Arben”) purchased Dema’s interest in the restaurant. Notably, Arben
makes no claim in this litigation.
8 Dedaj purchased and paid for Berisha’s interest in Prime Steak in
November 2016. Attached as Exhibit B are copies of checks I received from plaintiff's
counsel which he contends evidence Dedaj’s payment for Berisha and Marku’s interests.
The following checks, all dated November 28, 2016 were paid for Berisha’s interests in
Prime Steak
+ check No 1045 payable to Berisha from Triple Cleaning Maintenance Inc dated
November 28, 2016 in the amount of $22,000;
+ check No 1824 payable to Berisha from Delta Reliable Maintence Corp dated
November 28, 2016in the amount of $55,000;
+ check No 627 payable to Berisha from Dedaj dated November 28, 2016 in the
amount of $23,000.
(See Exhibit B)
9 Dedaj purchased Marku’s interest in Prime Steak in November 2016 and
paid for his interests on December 8, 2016 and December 12, 2016. According to
plaintiff's counsel, the following checks were utilized by Dedaj to pay for Marku’s
interest in Prime Steak:
+ check No 629 payable to Marku from Dedaj dated December 8, 2016 in the
amount of $50,000
* check No 593 payable to Marku from Dedaj dated December 12, 2016 in the
amount of $20,000.
(See Exhibit B)
10. Thus, Dedaj purchased Berisha’s and Marku’s interests on November 28,
2016, paid for Berisha’s interest that same day and paid for Marku’s interest on
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December 8, 2016 and December 12, 2016. The purchase was negotiated and paid for
without any party obtaining legal advice or retaining an attorney.
i. After Dedaj purchased Berisha’s and Marku’s interest in Prime Steak,
Berisha asked DeCandido, an attorney he had known for some time, to reduce the
transactions to writing on behalf of Prime Steak. A meeting was held on December 14,
2016 at which time agreements were executed transferring Berisha’s and Marku’s
interests to Dedaj. (DeCandido Affidavit Ex. A). DeCandido’s first involvement with the
transactions took place after Dedaj had already purchased and paid for Berisha’s and
Marku’s interests in Prime Steak.
12. At such meeting Dedaj, Berisha and Marku each signed a copy of a letter
entitled “Scope of Representation and Waiver of Conflict of Interest.” (DeCandido
Affidavit Ex. B). The document was prepared to memorialize the discussions that took
place so that there was no misunderstanding that DeCandido was not acting as Dedaj’s,
Berisha’s or Marku’s attorney. The document reveals that DeCandido was acting as
counsel to the Company, Prime Steak, and not any individual
13. By executing the document Dedaj acknowledges that a) he had an
opportunity to consult with his own attorney, b) that he has agreed to proceed with no
representation, and c) he waived any claim against DeCandido arising from a conflict of
interest.
14. DeCandido had the individuals execute the Scope of Representation and
Waiver of Conflict of Interest document to avoid this very type of litigation. By
executing the document Dedaj explicitly waived any claim of conflict of interest
involving DeCandido.
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15. Dedaj now brings a frivolous claim for legal malpractice despite the
absence of an attorney client relationship with DeCandido. To attempt to present a viable
claim he Complaint distorts the plain meaning of the Scope of Representation and Waiver
of Conflict of Interest document.
16. Despite the lack of an attorney client relationship Dedaj asserts two claims
of legal malpractice, one on his own behalf and one on behalf of Arben, as assignee.
However, the Complaint fails to attach a copy of the assignment.
17; The Complaint offers the conclusory assertion that Dedaj was the
assignee of Arben’s claims “that arise out of the facts set forth herein.” This type of
transfer is plainly insufficient on its face to effect an assignment of a tort claim. The
allegation that “Arben has since assigned his claims that arise out of the facts set forth
herein to Prel [Dedaj]” is wholly lacking any detail as to the specific terms of the
assignment - information within Dedaj’ possession as assignee - and is therefore similarly
insufficient to plead an assignment of tort claims.
18. As demonstrated in the accompanying DeCandido Affidavit and the
Memoranda of Law submitted in support of this motion, the actions of the parties do not
establish an attorney client relationship with DeCandido and thus the malpractice claims
must be dismissed. Dedaj’s unilateral belief does not confer upon him the status of
DeCandido’s client especially in light of the Scope of Representation and Waiver of
Conflict of Interest document in which Dedaj acknowledges that he is proceeding without
representation.
19. Further, the Complaint fails to establish proximate cause, and the
Complaint is totally refuted by documentary evidence, including the transfer agreements,
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the Scope of Representation and Waiver of Conflict of Interest document and the checks
provided by plaintiffs.
20. Since Dedaj’s purchase of Berisha’s and Marku’s interests in the
Company was consummated and paid for prior to any involvement by or retention of
DeCandido PC there is no causal connection between the alleged loss and DeCandido’s
alleged conduct. Due to the lack of proximate cause, DeCandido’s conduct, even if
negligent, cannot be the proximate cause of any loss.
21. The law is clear that a party who signs a document is conclusively bound
by its terms. Dedaj’s legal malpractice claims must be dismissed due to the lack of an
attorney client relationship and inability to ever establish proximate cause. The
Complaint’s third and fourth causes of action should be dismissed for failure to state a
claim and based upon the documentary evidence which refutes Dedaj’s claims.
22. Without demonstrating the existence of a valid assignment, the fourth
cause of action must be dismissed on the additional basis of Dedaj’s lack of standing.
23. It is respectfully submitted that dismissal of the Complaint as asserted
against DeCandido is warranted. It is requested that this court grant the instant motion
dismissing the complaint in its entirety, with prejudice, as to DeCandido, together with
such other further and different relief as this Court deems just and proper.
Dated: October 2, 2017
Tarrytown, N.Y.
cog
Mark Housman
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|
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
aes sbaeenengitetesachicsaesn SaaS wonkewees
PREL DEDAJ, on behalfof h elf and as assignee of
ARBEN DEDAJ, and PRIME E AK, LLC
Index No.:
Plaintiffs,
-against- SUMMONS
Venue is based upon the residence of
ZEF BERISHA, FREDDY MARKU, PETRIT DEMA, Defendant William V. DeCandido,
WILLIAM V. DeCANDIDO, P.C., and 46-11 P.Cx:
BROADWAY, LLC, 71-50 Austin Street, Suite 208
Forest Hills, New York 11375
Defendants.
nanennnn== NRene ESOT a
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the verified in this action and to serve a
copy of your verified answer, or, if the complaint is not served with this summons, to serve a
notice of appearance, on the Plaintiffs’ attorney(s) within 20 days after the service of this
summons, exclusive of the day of service (or within 30 days after the service is complete if this
summons is not personally delivered to you within the State of New York); and in case of your
failure to appear or answer, judgment will be taken against you by default for the relief
demanded herein.
Dated: Mineola, New York
August, 8 2017
MELTZER, LIPPE GOLDSTEIN & BREITSTONE, LLP
Attorneys for Plai iffs
By os
Ma KA, ade
Josl; a D. Sussman
190 Wiilis Avenue
Mineola, New York 11501
(516) 747-0300
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TO: ZEF BERISHA
7320 Austin Street, Apt. 1D
Forest Hills, New York 11375
Defendant
WILLIAM V. DeCANDIDO, P.C,
71-50 Austin Street, Suite 208
Forest Hills, New York 11375
Atin: William V. DeCandido, Esq.
Defendant
PETRIT DEMA
61 Hunter Avenue
Yonkers, New York 16704
Defendant
FREDDY MARKU
80-08 135th Street, Apt. 203
Briarwood, New York 11435
Defendant
46-11 BROADWAY, LLC
91-10 Metropolitan Avenue
Rego Park, New York 11103
Defendant
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
Sonica nen oan astern
emEucnnatiN
PREL DEDAJ, on behalf
of himself and as assignee of
ARBEN DEDAJ, and PRIME STEAK, LLC,
Plaintiffs, Index No.:
-against-
VERIFIED COMPLAINT
ZEF BERISHA, FREDDY MARKU, PETRIT DEMA,
WILLIAM V. DeCANDIDO, P.C., and 46-11
BROADWAY, LLC,
Defendants.
etiam aa reneenacamemrennoueumeranaNvarnEnNaNomuaEELEeS
Plaintiffs Prel Dedaj, on behalf of himself and as assignee of Arben Dedaj, and Prime
Steak, LLC (collectively, “Plaintiffs”), by their attorneys, Meltzer, Lippe, Goldstein &
Breitstone, LLP, as and for their Verified Complaint, set forth the following:
THE PARTIES
Plaintiff Prel Dedaj is a resident of the State of New York, County of Richmond.
2 Plaintiff Prime Steak, LLC is a domestic limited liability company.
3 Upon information and belief, Defendant Freddy Marku is a resident of the State of
New York, residing at 80-08 135th Street, Apt. 203, Briarwood, New York 11435.
4 Upon information and belief, defendant Petrit Dema is a resident of the State of
New York, residing at 61 Hunter Avenue, Yonkers, New York 10704.
|
|
5 Upon information and belief, defendant Zef Berisha is a resident of the State of
New York, residing at 7320 Austin Street, Apt. 1D, Forest Hills, New York 11375.
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6 Upon information and belief, defendant William V. DeCandido, P.C. is a
domestic professional corporation organized under the laws of the State of New York and
maintains an office at 71-50 Austin Street, Suite 208, Forest Hills, New York 11375.
7. Upon information and belief, Defendant 46-11 Broadway, LLC is a domestic
limited liability company with an address at 91-10 Metropolitan Avenue, Rego Park, New York
11374.
JURISDICTION AND VENUE
8 This Court has personal jurisdiction over the Freddy Marku, Perit Dema and Zef
Berisha, and each of them, since each resides in the State of New York and took part in the
fraudulent, disputed transaction in the State of New York.
9 This Court has personal jurisdiction over William V. DeCandido, P.C. since it is
organized under the laws of the State of New York, and provided negligent legal representation
to the Dedajs in the State of New York.
10. The Court has personal jurisdiction of 46-11 Broadway, LLC, since it is organized
under the laws of the State of New York, and has refused to return Prime Steak, LLC’s $44,000
security deposit for certain property Prime Steak, LLC leased in Queens, New York.
11. The venue is proper under CPLR § 503(a) as Freddy Marku and Zef Berisha
reside in Queens County and 46-11 Broadway, LLC has its principal place of business in Queens
County.
PRELIMINARY STATEMENT
12. Defendants Freddy Marku (“Marku”), Zef Berisha (“Berisha”) and Petrit Dema
(“Dema”, collectively, the “Defendant Members”) defrauded plaintiff Prel Dedaj (“Prel”) and his
younger brother Arben Dedaj (“Arben”, collectively the “Dedajs”) when the Defendant Members
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knowingly made misrepresentations to the Dedajs to induce them to purchase the Defendant
Members’ membership interests in plaintiff Prime Steak, LLC (“Prime Steak”) for $300,000.00.
iS: The Defendant Members sold the Dedajs Prime Steak, which was valueless and
mired in debt, by knowingly misrepresenting the length of Prime Steak’s Lease, that Prime Steak
owed the trade fixtures on the Leased Premises (i.e., the “$100,000 kitchen”) and that the
Landlord had retained a $75,000 security deposit.
14 The Defendant Members’ fraud would not have been possible but for the failure
of William V. DeCandido, Esq. of William V. DeCandido, P.C. (collectively, “DeCandido”) to
exercise the care, skill, and diligence commonly possessed and exercised by a member of the
legal profession when he unlawfully represented both the Defendant Members and the Dedajs in
the purchase and sale of the Defendant Members’ membership interests in Prime Steak, which
was an unwaivable and un-consentable conflict as DeCandido, or any reasonable attorney, could
not have adequately represented the adverse interests of both the Defendant Members and the
Dedajs.
THE FACTS
15, The Dedajs, Marku and Berisha’s extensive personal history preceded the sale.
The Dedajs and Marku are cousins who were raised together in Albania before they immigrated
to the United States in 2004. The Dedajs met Berisha five (5) years ago and became family two
(2) years ago when the Dedajs’ nephew married Berisha’s niece at wedding ceremony Berisha
hosted at his home.
16. In mid-November, Prel was informed by his older Pjeter Dedaj (“Pjeter”) that
Berisha was interested in selling his 34% membership interest in Prime Steak, LLC because of
| alleged infighting among the Defendant Members.
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1. On Thursday, November 24, 2016, Berisha and Prel met at Prime Steak to discuss
Prel’s possible purchase of Berisha’s 34% membership interest in Prime.
18. During Berisha’s November 24, 2016 pitch, he toured Prel through the facility
and showed him the kitchen, the five (5) dining rooms, the five (5) upstairs bedrooms and the
private parking lot with fifteen (15) spaces.
19. During the tour, Berisha knowingly misrepresented that Prime Steak owned all of
the trade fixtures and furnishings thorough premises, including “a $100,000 kitchen that can feed
1,000 people per day”, two walk-in cooler boxes, five industrial refrigerators, tables and chairs
and that due to its assets and trade furnishings, Prime Steak could be opened and operated within
days with no additional investment, that Prime Steak had a fifteen (15) year lease (the “Lease”)
for the entire premises located at 46-11 Broadway, Astoria, New York (the “Leased Premises”)
and that Prime Steak had a $75,000 security deposit (with each of the Defendant Members
contributing $25,000).
20. At the conclusion of the pitch, Berisha asked Prel to consider purchasing his 34%
membership interest in Prime Steak for $100,000.
21. On November 25, 2016, Prel advised Berisha that he was willing to purchase
Berisha’s 34% membership interest subject to finalizing terms and memorializing their
agreement. At the time, he delivered $100,000 to Berisha as a good faith down payment.
22 On or about November 28, 2016, Prel advised Berisha that he decided not to
move forward with transaction and cancelled the $100,000 good faith payment because he did
not want to own Prime Steak as a minority member.
23% On or about November 28, 2016, Berisha advised Prel that Marku was also
interested in selling his 33% membership interest in Prime Steak for $100,000 and that subject to
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finalizing terms and memorializing their agreement, he could be the 67% majority member for
$200,000.
24. On or about November 28, 2016, Prel spoke with Marku, who also knowingly
misrepresented that Prime Steak owned “a $100,000 kitchen that can feed 1,000 people per day,”
two walk-in cooler boxes, five industrial refrigerators, tables and chairs and that due to its assets
and trade furnishings Prime Steak could be opened and operated within days with no additional
investment; that Prime Steak had a fifteen (15) year Lease for the Leased Premises and that
Prime Steak had a $75,000 security deposit (with each of the Defendant Members contributing
$25,000).
25; On or about November 28, 2016, Prel advised Berisha and Marku that, based on
their representations, he was willing to purchase their membership interests in Prime Steak for
$200,000, subject to the parties’ negotiating the final terms of their agreement.
26. On or about November 28, 2016, Prel made a good faith $100,000 down payment
to Berisha for his 34% membership interest in Prime Steak, subject to the parties’ negotiating the
final terms of their agreement.
27. On or about November 28, 2016, Prel made a good faith $70,000 down payment
to Marku for his 33% membership interest in Prime Steak, subject to the parties’ negotiating the
final terms of their agreement, which included Prel’s ultimate assumption of a $30,000 debt that
Marku owed to Prel’s brother Pjeter. The checks Prel gave to Marku totaling $70,000 were post-
dated to December 12, 2017.
28. At the insistence of Berisha, William V. DeCandido, Esq. of William V.
DeCandido P.C. (collectively, “DeCandido”) was retained to represent Prel, Prime Steak and the
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Defendant Members to negotiate and draft the final terms of Prel’s purchase of Berisha’s and
Marku’s membership interest in Prime Steak.
28. Since Prel was purchasing Marku’s and Berisha’s membership interests in Prime
Steak, Prel’s interests differed from Marku’s and Berisha’s interests.
30. DeCandido’s representation of Prel, Marku and Berisha, adverse parties
negotiating the purchase and sale of membership interests in a limited liability company, was an
unwaivable and unconsentable conflict.
31k DeCandido’s representation of Prel, Marku and Berisha violated the Rules of
Professional Conduct because Prel, Marku and Berisha had differing interests.
32. Under the circumstances, DeCandidio could not have reasonably believed that he
could provide competent and diligent representation to Prel, Marku and Berisha.
33. Under the circumstances, a member of the legal profession could not have
reasonably believed that he could provide competent and diligent representation to Prel, Marku
and Berisha.
34. DeCandidio did not disclose the possible effect his joint representation of Prel,
Marku and Berisha could have on his independent professional judgment to Prel.
35. Prel did not give his informed consent to DeCandido’s joint representation of
Prel, Marku and Berhisa.
36. Prel was especially reliant on DeCandido because he immigrated to the United
States in 2004 from Albania at the age of forty-two (42) and has a rudimentary understanding of
English, at best.
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37. Prel’s purchase of the Berisha and Marku’s collective 67% membership interests
in Prime Steak was set for December 14, 2016, subject to the parties negotiating the final terms
of their agreement with DeCandidio.
38. Prior to December 14, 2016, it was determined that Pre! would purchase Berisha
and Marku’s 67% membership interests in Prime Steak on December 14, 2016 and he would
purchase the remaining 33% membership interest from Dema at a later date.
39. On December 14, 2016, Prel met with DeCandido and the Defendant Members at
DeCandido’s Forest Hills office to negotiate and finalize his purchase of 67% of Prime Steak.
40. At the December 14, 2016 meeting, DeCandido presented Prel and the Defendant
Members with an engagement letter which expressly admitted that his representation of both
parties was an “actual conflict”.
41. DeCandido verbally explained to Prel that the engagement letter stated there was
a “potential conflict” and by signing the engagement letter he understood that he did not have a
different lawyer from the Defendant Members. DeCandido never stated, suggested, or implied
that Prel and the Defendant Members should be represented by separate counsel or advised Prel
that DeCandido’s joint representation of him and the Defendant Members may affect his
professional judgment.
42. DeCandido also presented Prel with two (2) separate membership interest
purchase and sale agreements for the purchase of Berisha’s and Marku’s membership interests.
43. The two (2) membership interest purchase and sale agreements contained
additional terms and conditions beyond just the purchase price that parties had previously agreed
on.
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44, The additional terms of both membership interest purchase and sale agreements
included, inter alia, limited indemnities from Prel to Berisha and Marku for damages caused to
either of them as a result of Prel’s intentional or negligent misconduct. There was no reciprocal
indemnity from Berisha and Marku to Prel.
45. DeCandido did not explain these additional terms to Prel.
46. On December 14, 2016, the Defendant Members knowingly misrepresented that
Prime Steak owned “a $100,000 kitchen that can feed 1,000 people per day”, two walk-in cooler
boxes, five industrial refrigerators, tables and chairs and that due to its assets and trade
furnishings Prime Steak could be opened and operated within days with no additional
investment, that Prime Steak had a fifteen (15) year Lease for the Leased Premises and that
Prime Steak had a $75,000 security deposit (with each of the Defendant Members contributing
$25,000).
47. At the December 14, 2016 meeting, Prel asked DeCandido to confirm that the
Lease term was for guaranteed for at least fifteen (15) years.
48. At the December 14, 2016 meeting, DeCandido flipped through the Lease and
showed Prel its initial ten (10) year term and Prime Steak’s option to renew the lease for an
additional five (5) years.
49, Upon information and belief, DeCandido did not analyze the Lease prior to the
December 14, 2016 meeting.
50. Prel relied on DeCandido to analyze the Lease not only as his attorney but also
because of his rudimentary understanding of English.
51. After being advised by DeCandido that the Lease term was in fact for fifteen (15)
years, Prel executed both the membership interest purchase and sale agreements presented by
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NYSCEF DOC. NO. 331 RECEIVED NYSCEF: @B/86/2023
DeCandido, and permitted Berisha and Marku to retain the $100,000 and $70,000 down
payments. As agreed, the remaining $30,000 owed to Marku was paid by Prel to his brother
Pjeter who had previously made a $30,000 interest free loan to Marku that remained unpaid.
525 Prel did not receive the Lease or a closing binder from DeCandido at or following
the December 14, 2016 meeting.
53; After the December 14, 2016 meeting, Prel asked his other brother Arben if he
would purchase Dema’s 33% membership interest in Prime Steak.
34. Thereafter Arben and Prel met with the Defendant Members at Prime Steak where
the Defendant Members toured Arben around the Leased Premises in the same manner in which
Berisha toured Prel around on November 24, 2016. During the his tour, Arben received the same
pitch from the Defendant Members that Prel received from Berisha, including Berisha’s
representations that Prime Steak fully furnished the kitchen and the dining rooms, “owned a
$100,000 kitchen that can feed 1,000 people per day”, that due to its assets and trade furnishings
Prime Steak could be opened and operated within days with no additional investment, that Prime
Steak had a fifteen (15) year lease and a $75,000 security deposit ($25,000 from each of the
Defendant Members).
55. After the tour, Arben agreed to purchase Dema’s 33% membership interest in
Prim
Preview
iD: QU OUN PK DM INDEX NO. 710872/2017 NYSCEF BOC. NO. 331 RECEIVED NYSCEF: 03/30/2023 EXHIBIT 14 INDEX NO. 710872/2017 (FILED: QUEENS COUNTY CLERK 0373072023 12:55 PM NYSCEF DOC. NO. 331 RECEIVED NYSCEF 08/86/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS intimin neem meen int ete Sper mitreseomemereeemem errr SK PREL DEDAJ, on behalf of himself and as assignee of ARBEN DEDAJ, and PRIME STEAK, LLC. Index No. 710872/2017 Plaintiffs, -against- NOTICE OF MOTION TO ZEF BERISHA, FREDDY MARKU, PETRIT DEMA, DISMISS COMPLAINT WILLIAM V DECANDIDO. P.C.. and 46-11 BROADWAY, LLC, Motion 001 Defendant MIEN SOR En SRmrTaannsmennoneannnneprennnagereess weet aaa aee| PLEASE TAKE NOTICE, that upon the annexed affirmation of Mark E. Housman, Esq., dated October 2, 2017 and the exhibits annexed thereto, the affidavit of William DeCandido swom to on October 2, 2017 and the exhibits annexed thereto and the accompanying Memorandum of Law the undersigned will move this Court before the Centralized Motion Part, Room 25, Supreme Court, 88-11 Sutphin Blvd. Jamaica, New York, on October 31, 2017 at 2:15 p.m. or as soon thereafter as counsel can be heard, for an Order to be entered by this Court pursuant to CPLR 3211(a) (1), (3) & (7) dismissing the Complaint as against defendant William V. DeCandido PC together with such other and different relief as this Court deems just and proper. PLEASE TAKE FURTHER NOTICE that pursuant to CPLR Section 2214(b) answering papers, if any, are to be served upon the undersigned no later than 7 days before the return date of this motion. 1 of 2 INDEX NO. 710872/2017 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: @8/86/2023 Dated: Tarrytown, New York October 6, 2017 HOUSMAN & ASSOCIATES, P.C. 8 Kattan J) go 150 White Plains Road, Suite 310 Tarrytown, New York 10591 (914) 524-8500 Attorneys for Defendant Decandido TO Joshua Sussman Meltzer, Lippe, Goldstein& Breitstone, LLP 190 Willis Avenue Mineola NY 11501 Attorneys for Plaintiffs Acquista & Associates, PC 3775 Steinway Street Suite 211 Astoria, NY 11103 Attorneys for Defendant 46-11 Broadway Zimner Law, P.C 444 Madison Avenue, 4th Floor NY NY 10022 Attorneys for Defendant Marku ZEF BERISHA 7320 Austin Street. Apt. 10 Forest Hills, New York 11375 PETRIT DEMA 6 1 Hunter Avenue Yonkers, New York 16704 2 of 2 INDEX NO. 710872/2017 (FILED: QUEENS COUNTY CLERK &57B0/2023 02:55 PM NYSCEF DOC. NO. 321 RECEIVED NYSCEF: @8/86/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS pears Se ne era -X PREL DEDAJ, on behalf of himself and as assignee of ARBEN DEDAJ, and PRIME STEAK, LLC. Index No. 710872/2017 Plaintiffs, -against- AFFIRMATION IN SUPPORT OF MOTION ZEF BERISHA, FREDDY MARKU, PETRIT DEMA, TO DISMISS WILLIAM V DECANDIDO. P.C.. and 46-11 BROADWAY, LLC, Defendant penne een ene nee ene e nnn nen e enn nen enee nnn nnes Mark Housman, an attorney being duly admitted to practice law before the Courts of this State, hereby affirms the following under penalties of perjury: 1 I am a shareholder and principal attorney in the law firm of Housman & Associates, P.C., attorneys for Defendant Willian DeCandido P.C. (“DeCandido”) and am fully familiar with the facts of this matter as they pertain to the instant motion based upon my conversations with my client and my review of the file maintained by this office.' 2 I submit this Affirmation in support of the instant motion which seeks an Order to be entered by this Court pursuant to CPLR § 3211(a) (1), (3) & (7) dismissing the Complaint in its entirety against DeCandido PC together with such other and different relief as this Court deems just and proper. 3 This action was commenced on August 8, 2017 with the filing of a Summons and Verified Complaint (hereafter the “Complaint”) a copy of which is annexed as Exhibit A. As set forth in the accompanying Memorandum of Law, the ' For purposes of this affirmation William V DeCandido PC and William DeCandido will both be referred to as “DeCandido.” 1 of 6 INDEX NO. 710872/2017 NYSCEF DOC. NO. 321 RECEIVED NYSCEF: @8/86/2023 Complaint’s two causes of action alleging legal malpractice against DeCandido are deficient for numerous reasons and should be dismissed. There are no other causes of action asserted against DeCandido. 4 The matter revolves around a venture in which some family members purchased the interests of other family members in a restaurant (Prime Steak). On behalf of the Company, Prime Steak, LLC, DeCandido “papered the deal” that was negotiated, consummated and paid for prior to his involvement. He advised the parties to the transactions to seek the advice of their own counsel. They chose not to do so. 5 The parties executed a document acknowledging that DeCandido represented the Company in a limited capacity, that they had the opportunity to consult with their own counsel, that they were proceeding with no representation and that they waived any claims against DeCandido alleging a conflict of interest. 6 Plaintiffs do not dispute that they signed such document. Nevertheless, they commenced this action claiming that DeCandido was their attorney, that he admitted having a conflict of interest, that they were not told to seek the advice of their own counsel and that they did not waive any claims against DeCandido. Plaintiff's claims are belied by the documentary evidence and are frivolous. The Complaint mischaracterizes the clear language of the documentary evidence and is nothing more than a hollow attempt to have DeCandido pay for plaintiff's venture which apparently failed. 7 This litigation arises out of a business dispute between family members plaintiff Prel Dedaj (“Dedaj”) and defendants, Zef Berisha (“Berisha”), Freddy Marku (“Marku”), and Petrit Dema (“Dema”). Essentially, Dedaj purchased the interests of Berisha and Marku in a restaurant in Queens, Prime Steak, LLC. Thereafter, plaintiff, 2 of 6 INDEX NO. 710872/2017 (FILED: QUEENS COUNTY CLERK &5/7B0/2023 02:56 PM NYSCEF DOC. NO. 321 RECEIVED NYSCEF: @8/86/2023 Arben Dedaj (“Arben”) purchased Dema’s interest in the restaurant. Notably, Arben makes no claim in this litigation. 8 Dedaj purchased and paid for Berisha’s interest in Prime Steak in November 2016. Attached as Exhibit B are copies of checks I received from plaintiff's counsel which he contends evidence Dedaj’s payment for Berisha and Marku’s interests. The following checks, all dated November 28, 2016 were paid for Berisha’s interests in Prime Steak + check No 1045 payable to Berisha from Triple Cleaning Maintenance Inc dated November 28, 2016 in the amount of $22,000; + check No 1824 payable to Berisha from Delta Reliable Maintence Corp dated November 28, 2016in the amount of $55,000; + check No 627 payable to Berisha from Dedaj dated November 28, 2016 in the amount of $23,000. (See Exhibit B) 9 Dedaj purchased Marku’s interest in Prime Steak in November 2016 and paid for his interests on December 8, 2016 and December 12, 2016. According to plaintiff's counsel, the following checks were utilized by Dedaj to pay for Marku’s interest in Prime Steak: + check No 629 payable to Marku from Dedaj dated December 8, 2016 in the amount of $50,000 * check No 593 payable to Marku from Dedaj dated December 12, 2016 in the amount of $20,000. (See Exhibit B) 10. Thus, Dedaj purchased Berisha’s and Marku’s interests on November 28, 2016, paid for Berisha’s interest that same day and paid for Marku’s interest on 3 of 6 INDEX NO. 710872/2017 NYSCEF DOC. NO. 321 RECEIVED NYSCEF: @8/86/2023 December 8, 2016 and December 12, 2016. The purchase was negotiated and paid for without any party obtaining legal advice or retaining an attorney. i. After Dedaj purchased Berisha’s and Marku’s interest in Prime Steak, Berisha asked DeCandido, an attorney he had known for some time, to reduce the transactions to writing on behalf of Prime Steak. A meeting was held on December 14, 2016 at which time agreements were executed transferring Berisha’s and Marku’s interests to Dedaj. (DeCandido Affidavit Ex. A). DeCandido’s first involvement with the transactions took place after Dedaj had already purchased and paid for Berisha’s and Marku’s interests in Prime Steak. 12. At such meeting Dedaj, Berisha and Marku each signed a copy of a letter entitled “Scope of Representation and Waiver of Conflict of Interest.” (DeCandido Affidavit Ex. B). The document was prepared to memorialize the discussions that took place so that there was no misunderstanding that DeCandido was not acting as Dedaj’s, Berisha’s or Marku’s attorney. The document reveals that DeCandido was acting as counsel to the Company, Prime Steak, and not any individual 13. By executing the document Dedaj acknowledges that a) he had an opportunity to consult with his own attorney, b) that he has agreed to proceed with no representation, and c) he waived any claim against DeCandido arising from a conflict of interest. 14. DeCandido had the individuals execute the Scope of Representation and Waiver of Conflict of Interest document to avoid this very type of litigation. By executing the document Dedaj explicitly waived any claim of conflict of interest involving DeCandido. 4 of 6 INDEX NO. 710872/2017 NYSCEF DOC. NO. 321 RECEIVED NYSCEF: @8/86/2023 15. Dedaj now brings a frivolous claim for legal malpractice despite the absence of an attorney client relationship with DeCandido. To attempt to present a viable claim he Complaint distorts the plain meaning of the Scope of Representation and Waiver of Conflict of Interest document. 16. Despite the lack of an attorney client relationship Dedaj asserts two claims of legal malpractice, one on his own behalf and one on behalf of Arben, as assignee. However, the Complaint fails to attach a copy of the assignment. 17; The Complaint offers the conclusory assertion that Dedaj was the assignee of Arben’s claims “that arise out of the facts set forth herein.” This type of transfer is plainly insufficient on its face to effect an assignment of a tort claim. The allegation that “Arben has since assigned his claims that arise out of the facts set forth herein to Prel [Dedaj]” is wholly lacking any detail as to the specific terms of the assignment - information within Dedaj’ possession as assignee - and is therefore similarly insufficient to plead an assignment of tort claims. 18. As demonstrated in the accompanying DeCandido Affidavit and the Memoranda of Law submitted in support of this motion, the actions of the parties do not establish an attorney client relationship with DeCandido and thus the malpractice claims must be dismissed. Dedaj’s unilateral belief does not confer upon him the status of DeCandido’s client especially in light of the Scope of Representation and Waiver of Conflict of Interest document in which Dedaj acknowledges that he is proceeding without representation. 19. Further, the Complaint fails to establish proximate cause, and the Complaint is totally refuted by documentary evidence, including the transfer agreements, 5 of 6 INDEX NO. 710872/2017 NYSCEF DOC. NO. 321 RECEIVED NYSCEF: @8/86/2023 the Scope of Representation and Waiver of Conflict of Interest document and the checks provided by plaintiffs. 20. Since Dedaj’s purchase of Berisha’s and Marku’s interests in the Company was consummated and paid for prior to any involvement by or retention of DeCandido PC there is no causal connection between the alleged loss and DeCandido’s alleged conduct. Due to the lack of proximate cause, DeCandido’s conduct, even if negligent, cannot be the proximate cause of any loss. 21. The law is clear that a party who signs a document is conclusively bound by its terms. Dedaj’s legal malpractice claims must be dismissed due to the lack of an attorney client relationship and inability to ever establish proximate cause. The Complaint’s third and fourth causes of action should be dismissed for failure to state a claim and based upon the documentary evidence which refutes Dedaj’s claims. 22. Without demonstrating the existence of a valid assignment, the fourth cause of action must be dismissed on the additional basis of Dedaj’s lack of standing. 23. It is respectfully submitted that dismissal of the Complaint as asserted against DeCandido is warranted. It is requested that this court grant the instant motion dismissing the complaint in its entirety, with prejudice, as to DeCandido, together with such other further and different relief as this Court deems just and proper. Dated: October 2, 2017 Tarrytown, N.Y. cog Mark Housman 6 of 6 INDEX NO. 710872/2017 (FILED: QUEENS @8/56/2023 COUNTY CLERK 03:36 PM NYSCEF DOC. NO! 331 RECEIVED NYSCEF: @B/86/2023 | SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS aes sbaeenengitetesachicsaesn SaaS wonkewees PREL DEDAJ, on behalfof h elf and as assignee of ARBEN DEDAJ, and PRIME E AK, LLC Index No.: Plaintiffs, -against- SUMMONS Venue is based upon the residence of ZEF BERISHA, FREDDY MARKU, PETRIT DEMA, Defendant William V. DeCandido, WILLIAM V. DeCANDIDO, P.C., and 46-11 P.Cx: BROADWAY, LLC, 71-50 Austin Street, Suite 208 Forest Hills, New York 11375 Defendants. nanennnn== NRene ESOT a TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the verified in this action and to serve a copy of your verified answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiffs’ attorney(s) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded herein. Dated: Mineola, New York August, 8 2017 MELTZER, LIPPE GOLDSTEIN & BREITSTONE, LLP Attorneys for Plai iffs By os Ma KA, ade Josl; a D. Sussman 190 Wiilis Avenue Mineola, New York 11501 (516) 747-0300 790071 1 1 of 40 (FILED: QU ENS COUNTY CLERK &8/7B0/2023 03:55 PM INDEX NO. 710872/2017 NYSCEF DOC. NO} 331 RECEIVED NYSCEF: @B/86/2023 TO: ZEF BERISHA 7320 Austin Street, Apt. 1D Forest Hills, New York 11375 Defendant WILLIAM V. DeCANDIDO, P.C, 71-50 Austin Street, Suite 208 Forest Hills, New York 11375 Atin: William V. DeCandido, Esq. Defendant PETRIT DEMA 61 Hunter Avenue Yonkers, New York 16704 Defendant FREDDY MARKU 80-08 135th Street, Apt. 203 Briarwood, New York 11435 Defendant 46-11 BROADWAY, LLC 91-10 Metropolitan Avenue Rego Park, New York 11103 Defendant 790071 2 of 40 = INDEX NO. 710872/2017 NYSCEF DOC. " 331 RECEIVED NYSCEF: @8/88/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Sonica nen oan astern emEucnnatiN PREL DEDAJ, on behalf of himself and as assignee of ARBEN DEDAJ, and PRIME STEAK, LLC, Plaintiffs, Index No.: -against- VERIFIED COMPLAINT ZEF BERISHA, FREDDY MARKU, PETRIT DEMA, WILLIAM V. DeCANDIDO, P.C., and 46-11 BROADWAY, LLC, Defendants. etiam aa reneenacamemrennoueumeranaNvarnEnNaNomuaEELEeS Plaintiffs Prel Dedaj, on behalf of himself and as assignee of Arben Dedaj, and Prime Steak, LLC (collectively, “Plaintiffs”), by their attorneys, Meltzer, Lippe, Goldstein & Breitstone, LLP, as and for their Verified Complaint, set forth the following: THE PARTIES Plaintiff Prel Dedaj is a resident of the State of New York, County of Richmond. 2 Plaintiff Prime Steak, LLC is a domestic limited liability company. 3 Upon information and belief, Defendant Freddy Marku is a resident of the State of New York, residing at 80-08 135th Street, Apt. 203, Briarwood, New York 11435. 4 Upon information and belief, defendant Petrit Dema is a resident of the State of New York, residing at 61 Hunter Avenue, Yonkers, New York 10704. | | 5 Upon information and belief, defendant Zef Berisha is a resident of the State of New York, residing at 7320 Austin Street, Apt. 1D, Forest Hills, New York 11375. 790076 3 of 40 INDEX NO. 710872/2017 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: saree/a 6 Upon information and belief, defendant William V. DeCandido, P.C. is a domestic professional corporation organized under the laws of the State of New York and maintains an office at 71-50 Austin Street, Suite 208, Forest Hills, New York 11375. 7. Upon information and belief, Defendant 46-11 Broadway, LLC is a domestic limited liability company with an address at 91-10 Metropolitan Avenue, Rego Park, New York 11374. JURISDICTION AND VENUE 8 This Court has personal jurisdiction over the Freddy Marku, Perit Dema and Zef Berisha, and each of them, since each resides in the State of New York and took part in the fraudulent, disputed transaction in the State of New York. 9 This Court has personal jurisdiction over William V. DeCandido, P.C. since it is organized under the laws of the State of New York, and provided negligent legal representation to the Dedajs in the State of New York. 10. The Court has personal jurisdiction of 46-11 Broadway, LLC, since it is organized under the laws of the State of New York, and has refused to return Prime Steak, LLC’s $44,000 security deposit for certain property Prime Steak, LLC leased in Queens, New York. 11. The venue is proper under CPLR § 503(a) as Freddy Marku and Zef Berisha reside in Queens County and 46-11 Broadway, LLC has its principal place of business in Queens County. PRELIMINARY STATEMENT 12. Defendants Freddy Marku (“Marku”), Zef Berisha (“Berisha”) and Petrit Dema (“Dema”, collectively, the “Defendant Members”) defrauded plaintiff Prel Dedaj (“Prel”) and his younger brother Arben Dedaj (“Arben”, collectively the “Dedajs”) when the Defendant Members 790076 2 4 of 40 \| INDEX NO. 710872/2017 NYSCEF DOC. NO} 331 RECEIVED NYSCEF: @B/86/2023 knowingly made misrepresentations to the Dedajs to induce them to purchase the Defendant Members’ membership interests in plaintiff Prime Steak, LLC (“Prime Steak”) for $300,000.00. iS: The Defendant Members sold the Dedajs Prime Steak, which was valueless and mired in debt, by knowingly misrepresenting the length of Prime Steak’s Lease, that Prime Steak owed the trade fixtures on the Leased Premises (i.e., the “$100,000 kitchen”) and that the Landlord had retained a $75,000 security deposit. 14 The Defendant Members’ fraud would not have been possible but for the failure of William V. DeCandido, Esq. of William V. DeCandido, P.C. (collectively, “DeCandido”) to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession when he unlawfully represented both the Defendant Members and the Dedajs in the purchase and sale of the Defendant Members’ membership interests in Prime Steak, which was an unwaivable and un-consentable conflict as DeCandido, or any reasonable attorney, could not have adequately represented the adverse interests of both the Defendant Members and the Dedajs. THE FACTS 15, The Dedajs, Marku and Berisha’s extensive personal history preceded the sale. The Dedajs and Marku are cousins who were raised together in Albania before they immigrated to the United States in 2004. The Dedajs met Berisha five (5) years ago and became family two (2) years ago when the Dedajs’ nephew married Berisha’s niece at wedding ceremony Berisha hosted at his home. 16. In mid-November, Prel was informed by his older Pjeter Dedaj (“Pjeter”) that Berisha was interested in selling his 34% membership interest in Prime Steak, LLC because of | alleged infighting among the Defendant Members. | 790076 3 || | 5 of 40 INDEX NO. 710872/2017 NYSCEF DOC. NO.) 331 RECEIVED NYSCEF: 08/86/2023 1. On Thursday, November 24, 2016, Berisha and Prel met at Prime Steak to discuss Prel’s possible purchase of Berisha’s 34% membership interest in Prime. 18. During Berisha’s November 24, 2016 pitch, he toured Prel through the facility and showed him the kitchen, the five (5) dining rooms, the five (5) upstairs bedrooms and the private parking lot with fifteen (15) spaces. 19. During the tour, Berisha knowingly misrepresented that Prime Steak owned all of the trade fixtures and furnishings thorough premises, including “a $100,000 kitchen that can feed 1,000 people per day”, two walk-in cooler boxes, five industrial refrigerators, tables and chairs and that due to its assets and trade furnishings, Prime Steak could be opened and operated within days with no additional investment, that Prime Steak had a fifteen (15) year lease (the “Lease”) for the entire premises located at 46-11 Broadway, Astoria, New York (the “Leased Premises”) and that Prime Steak had a $75,000 security deposit (with each of the Defendant Members contributing $25,000). 20. At the conclusion of the pitch, Berisha asked Prel to consider purchasing his 34% membership interest in Prime Steak for $100,000. 21. On November 25, 2016, Prel advised Berisha that he was willing to purchase Berisha’s 34% membership interest subject to finalizing terms and memorializing their agreement. At the time, he delivered $100,000 to Berisha as a good faith down payment. 22 On or about November 28, 2016, Prel advised Berisha that he decided not to move forward with transaction and cancelled the $100,000 good faith payment because he did not want to own Prime Steak as a minority member. 23% On or about November 28, 2016, Berisha advised Prel that Marku was also interested in selling his 33% membership interest in Prime Steak for $100,000 and that subject to 790076 4 6 of 40 ° INDEX NO. 710872/2' 17 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: @B/86/2' 23 finalizing terms and memorializing their agreement, he could be the 67% majority member for $200,000. 24. On or about November 28, 2016, Prel spoke with Marku, who also knowingly misrepresented that Prime Steak owned “a $100,000 kitchen that can feed 1,000 people per day,” two walk-in cooler boxes, five industrial refrigerators, tables and chairs and that due to its assets and trade furnishings Prime Steak could be opened and operated within days with no additional investment; that Prime Steak had a fifteen (15) year Lease for the Leased Premises and that Prime Steak had a $75,000 security deposit (with each of the Defendant Members contributing $25,000). 25; On or about November 28, 2016, Prel advised Berisha and Marku that, based on their representations, he was willing to purchase their membership interests in Prime Steak for $200,000, subject to the parties’ negotiating the final terms of their agreement. 26. On or about November 28, 2016, Prel made a good faith $100,000 down payment to Berisha for his 34% membership interest in Prime Steak, subject to the parties’ negotiating the final terms of their agreement. 27. On or about November 28, 2016, Prel made a good faith $70,000 down payment to Marku for his 33% membership interest in Prime Steak, subject to the parties’ negotiating the final terms of their agreement, which included Prel’s ultimate assumption of a $30,000 debt that Marku owed to Prel’s brother Pjeter. The checks Prel gave to Marku totaling $70,000 were post- dated to December 12, 2017. 28. At the insistence of Berisha, William V. DeCandido, Esq. of William V. DeCandido P.C. (collectively, “DeCandido”) was retained to represent Prel, Prime Steak and the 790076 7 of 40 INDEX NO. 710872/2017 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: @8/86/2023 Defendant Members to negotiate and draft the final terms of Prel’s purchase of Berisha’s and Marku’s membership interest in Prime Steak. 28. Since Prel was purchasing Marku’s and Berisha’s membership interests in Prime Steak, Prel’s interests differed from Marku’s and Berisha’s interests. 30. DeCandido’s representation of Prel, Marku and Berisha, adverse parties negotiating the purchase and sale of membership interests in a limited liability company, was an unwaivable and unconsentable conflict. 31k DeCandido’s representation of Prel, Marku and Berisha violated the Rules of Professional Conduct because Prel, Marku and Berisha had differing interests. 32. Under the circumstances, DeCandidio could not have reasonably believed that he could provide competent and diligent representation to Prel, Marku and Berisha. 33. Under the circumstances, a member of the legal profession could not have reasonably believed that he could provide competent and diligent representation to Prel, Marku and Berisha. 34. DeCandidio did not disclose the possible effect his joint representation of Prel, Marku and Berisha could have on his independent professional judgment to Prel. 35. Prel did not give his informed consent to DeCandido’s joint representation of Prel, Marku and Berhisa. 36. Prel was especially reliant on DeCandido because he immigrated to the United States in 2004 from Albania at the age of forty-two (42) and has a rudimentary understanding of English, at best. 790076 8 of 40 INDEX NO. 710872/2017 NYSCEF DOC. NO 331 RECEIVED NYSCEF: 08/88/2023 37. Prel’s purchase of the Berisha and Marku’s collective 67% membership interests in Prime Steak was set for December 14, 2016, subject to the parties negotiating the final terms of their agreement with DeCandidio. 38. Prior to December 14, 2016, it was determined that Pre! would purchase Berisha and Marku’s 67% membership interests in Prime Steak on December 14, 2016 and he would purchase the remaining 33% membership interest from Dema at a later date. 39. On December 14, 2016, Prel met with DeCandido and the Defendant Members at DeCandido’s Forest Hills office to negotiate and finalize his purchase of 67% of Prime Steak. 40. At the December 14, 2016 meeting, DeCandido presented Prel and the Defendant Members with an engagement letter which expressly admitted that his representation of both parties was an “actual conflict”. 41. DeCandido verbally explained to Prel that the engagement letter stated there was a “potential conflict” and by signing the engagement letter he understood that he did not have a different lawyer from the Defendant Members. DeCandido never stated, suggested, or implied that Prel and the Defendant Members should be represented by separate counsel or advised Prel that DeCandido’s joint representation of him and the Defendant Members may affect his professional judgment. 42. DeCandido also presented Prel with two (2) separate membership interest purchase and sale agreements for the purchase of Berisha’s and Marku’s membership interests. 43. The two (2) membership interest purchase and sale agreements contained additional terms and conditions beyond just the purchase price that parties had previously agreed on. 790076 9 of 40 ° INDEX NO. 710872/2' 17 NYSCEF DOC. NO.) 331 RECEIVED NYSCEF: @B/886/2 23 44, The additional terms of both membership interest purchase and sale agreements included, inter alia, limited indemnities from Prel to Berisha and Marku for damages caused to either of them as a result of Prel’s intentional or negligent misconduct. There was no reciprocal indemnity from Berisha and Marku to Prel. 45. DeCandido did not explain these additional terms to Prel. 46. On December 14, 2016, the Defendant Members knowingly misrepresented that Prime Steak owned “a $100,000 kitchen that can feed 1,000 people per day”, two walk-in cooler boxes, five industrial refrigerators, tables and chairs and that due to its assets and trade furnishings Prime Steak could be opened and operated within days with no additional investment, that Prime Steak had a fifteen (15) year Lease for the Leased Premises and that Prime Steak had a $75,000 security deposit (with each of the Defendant Members contributing $25,000). 47. At the December 14, 2016 meeting, Prel asked DeCandido to confirm that the Lease term was for guaranteed for at least fifteen (15) years. 48. At the December 14, 2016 meeting, DeCandido flipped through the Lease and showed Prel its initial ten (10) year term and Prime Steak’s option to renew the lease for an additional five (5) years. 49, Upon information and belief, DeCandido did not analyze the Lease prior to the December 14, 2016 meeting. 50. Prel relied on DeCandido to analyze the Lease not only as his attorney but also because of his rudimentary understanding of English. 51. After being advised by DeCandido that the Lease term was in fact for fifteen (15) years, Prel executed both the membership interest purchase and sale agreements presented by 790076 8 10 of 40 INDEX NO. 710872/2017 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: @B/86/2023 DeCandido, and permitted Berisha and Marku to retain the $100,000 and $70,000 down payments. As agreed, the remaining $30,000 owed to Marku was paid by Prel to his brother Pjeter who had previously made a $30,000 interest free loan to Marku that remained unpaid. 525 Prel did not receive the Lease or a closing binder from DeCandido at or following the December 14, 2016 meeting. 53; After the December 14, 2016 meeting, Prel asked his other brother Arben if he would purchase Dema’s 33% membership interest in Prime Steak. 34. Thereafter Arben and Prel met with the Defendant Members at Prime Steak where the Defendant Members toured Arben around the Leased Premises in the same manner in which Berisha toured Prel around on November 24, 2016. During the his tour, Arben received the same pitch from the Defendant Members that Prel received from Berisha, including Berisha’s representations that Prime Steak fully furnished the kitchen and the dining rooms, “owned a $100,000 kitchen that can feed 1,000 people per day”, that due to its assets and trade furnishings Prime Steak could be opened and operated within days with no additional investment, that Prime Steak had a fifteen (15) year lease and a $75,000 security deposit ($25,000 from each of the Defendant Members). 55. After the tour, Arben agreed to purchase Dema’s 33% membership interest in Prim