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FILED: NASSAU COUNTY CLERK 10/30/2023 06:45 PM INDEX NO. 613304/2023
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EXHIBIT “B”
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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KAVA GIRL, LLC, by CHRISTOPHER WIERZBICKI,
individually and derivatively, JACQUELINE INDEX NO.:
KAGIWADA, individually,
EMERGENCY AFFIRMATION
Plaintiffs,
-against-
CAREY PRENDERGAST, KT BREWING CORP.,
VILLAGE KAVA BAR, INC.,
Defendants.
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STEVEN A. FELDMAN, ESQ., an attorney duly admitted to practice law before this Court and
the Courts of the State of New York, hereby affirms the following under the penalty of perjury:
1. That I am the principal of the Law Office of Steven A. Feldman & Associates, PLLC, the attorneys
for Mr. Christopher Wierzbicki, one of the plaintiffs herein.
2. All plaintiffs, i.e. Kava Girl, LLC and Jacqueline Kagiwada, join in this.
3. That I am familiar with the facts and circumstances to be had herein by virtue of my review of the file
maintained by my office and by virtue of my conversations had with plaintiffs.
4. That this affirmation is respectfully submitted in support of the plaintiffs’ within order to show cause
seeking a preliminary injunction and temporary restraining order which enjoins and restrains the
defendants Carey Prendergast (“Prendergast”), KT Brewing Corp.,(“KT Brewing”), and Village Kava
Bar, Inc., (“Village Kava”), including their respective agents, employees, servants, attorneys,
representatives, and other persons acting on their behalf or in concert with them in any manner or by
any means: (i) from taking any action in furtherance of the termination of the license agreement,
including issue any notice, to interfere with plaintiffs’ possessory rights of the premises known as 71
Broadway, Greenlawn, New York (“premises”) and deeming any such action taken unlawful; (ii)
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pursuant to CPLR§§ 6301 and 6311, from taking any further action on or on behalf of or in furtherance
of its operation as a kava bar from the premises, including without limitation, marketing, distributing,
releasing advertising (including on social media), and offering to sell kava products from the premises;
(iii) from the unauthorized use, disclosure, and exploitation of plaintiffs’ trade secrets, concepts,
goodwill, reputation and/or other propriety information belonging to the Kava Girl brand, as defined
within the parties non-disclosure agreement (“NDA”) and Verified Complaint; (iv) directing
defendants to restore plaintiffs to immediate possession of the premises pursuant to the terms of the
license agreement so that plaintiffs may resume business operations; (vi) an order permitting plaintiffs,
their respective agents, assignees and/or employees, to change the locks on the premises and take any
such further action necessary in resuming normal business operations as a kava bar, including without
limitation, rehanging the Kava Girl signage and (vii) awarding plaintiffs with such other and different
relief as this Court may deem just and proper.
5. Plaintiffs have provided the requisite 22 NYCRR §202.7(f) notice to defendants of the bringing of this
order to show cause via written correspondence dated August 17, 2023, notifying defendants of the
date, time, location, and relief being requested. A copy of this correspondence has been annexed as
Exhibit “1” to this Affirmation.
6. Additional notice was also provided prior to the presentment of this application, a copy of which has
also been annexed as Exhibit “1” to this Affirmation.
7. Plaintiffs have not requested prior similar relief from this Court or any other court of competent
jurisdiction.
8. For the reasons set forth herein, it is respectfully submitted that the circumstances of this dispute
warrant this Court’s immediate review of the application and further justify the imposition of the
requested restraints to protect plaintiffs’ interest and respective rights.
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9. Although a full recitation of the facts giving rise to this matter are set forth in detail in the
accompanying Verified Complaint, the relevant facts for purposes of this affirmation, are as follows.
10. Defendant Carey Prendergast, the sole shareholder of KT Brewing Corp. negotiated a license
agreement with, Kava Girl, LLC, in April 2023 (Exhibit A of the accompanying Verified Complaint).
The licensing agreement granted Kava Girl the exclusive right to operate a kava bar under the brand
name 'Kava Girl' at 71 Broadway, Greenlawn, New York. Kava Girl was also obligated thereby to pay
a monthly rent of $1,800 directly to the owner/landlord.
11. Relying on the representations made by the defendants, plaintiffs invested significant resources, time,
energy, and capital to renovate the premises, procure necessary equipment, and stock inventory.
However, numerous breaches of the agreement have occurred, leading to multiple claims against the
defendants, as outlined in the Verified Complaint.
12. Defendant Prendergast breached his agreement with plaintiffs by falsely representing that his prior
entity, Village Kava Bar, Inc., was no longer in operation and posed no competition to Kava Girl. In
reliance on this representation, plaintiffs invested in the venture and resolved Village Kava's
outstanding debts which have now been discovered to be odious debts.
13. Recently, we have learned that Village Kava has either resumed or is attempting to resume business
operations, thus directly competing with Kava Girl. This breach has resulted in significant financial
losses and damages for plaintiffs.
14. Furthermore, defendant Prendergast, both individually and through the corporate entities of KT
Brewing and Village Kava, violated his agreement by disclosing confidential information related to
the Kava Girl brand. This unauthorized disclosure is a direct violation of the non-disclosure agreement,
causing irreparable harm and injury to my clients.
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15. The non-disclosure agreement expressly provides, in relevant part that:
Injunctive Relief. A breach of any of the promises or agreements
contained herein will result in irreparable and continuing damage to
Releasor for which there will be no adequate remedy at law, and
Releasor shall be entitled to injunctive relief and/or a decree for
specific performance, and such other relief as may be proper
(including monetary damages if appropriate).
See Exhibit “B” to the accompanying Verified Complaint.
16. Thus, defendants breach of this agreement, by using proprietary methods and information in direct
violation of the lawful and legitimate restraints negotiated in the non-disclosure agreement.
17. In addition, defendants engaged in fraudulent activities that have jeopardized plaintiffs’ business.
Security camera footage has revealed a pattern of stealing, looting, and diverting cash payments, which
were not reported through the point-of-sale system. Specifically, “raiding” the cash register amounts
to a clear breach of defendants’ fiduciary duties owed to his fellow partners as well as embezzlement.
18. Further, these actions not only constitute breaches of defendants aforementioned fiduciary duties, but
also of the promises and representations made by defendants to plaintiffs, which have since resulted
in significant financial losses and the dissipation of plaintiffs’ capital contributions and profits.
19. Second, the defendants have wrongfully ousted plaintiffs from their lawful use and occupancy of the
Greenlawn location, violating the terms of the license agreement. Despite plaintiffs’ full compliance
with their obligations under the agreement, the defendants have made efforts to remove them from the
premises, depriving them of the agreed-upon use and occupancy.
20. Lastly, the defendants' actions demonstrate clear cases of actual fraud. Security camera footage reveals
a persistent pattern of stealing, looting, and the intentional disabling of the security cameras. The
defendants have intentionally locked plaintiffs’ out of the premises, dismantled Kava Girl's signage,
and unlawfully attempted to access their bank accounts. These deliberate actions indicate an intent to
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deceive and unlawfully divert funds and assets for personal gain, causing immense harm to plaintiffs’
and their business.
21. Prior to initiating this legal action, Plaintiff’s attempted to communicate with defendant Prendergast
to resolve the issues without resorting to litigation. Unfortunately, the defendant failed to respond and
has since escalated his efforts to wrongfully dispossess plaintiffs from their Greenlawn location. As a
result, plaintiffs have been compelled to commence this action, seeking full restitution of all
misappropriated funds, the return of all Kava Girl's assets and equipment, and full reimbursement for
all losses suffered, including operating capital, financial investments, and damages resulting from the
defendants' clear breach of contract and fraudulent actions.
22. To maintain the status quo pending a resolution of these claims, plaintiffs urgently require an
immediate order enjoining the defendants from further efforts to cancel the license agreement related
to the Greenlawn location.
23. They seek termination of any competing business operations conducted under Village Kava, in direct
violation of the partnership agreement and defendant's fiduciary duties.
24. Additionally, plaintiffs request an order directing the defendants to cease and desist all unauthorized
access attempts to Kava Girl's bank accounts and to return any unlawfully obtained funds.
25. Finally, plaintiffs seek an immediate cessation of any further fraudulent actions or interference in the
operations of Kava Girl's business.
26. Considering the serious nature of the breaches and fraudulent actions committed by the defendants,
coupled with the terms of the non-disclosure agreement which authorize immediate injunctive relief,
plaintiffs respectfully urge this Court to immediate entertain and grant this application for the issuance
of such relief.
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27. Notably, such urgent relief is necessary to safeguard plaintiffs’ interests and preserve the viability of
their business.
WHEREFORE, it is respectfully requested that this Court immediate entertain the instant application
and thereupon grant the requested relief and further award plaintiffs with such other and different relief as
this Court may deem just and proper.
Dated: August 18, 2023
__________________________________
Steven A. Feldman, Esq.
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CERTIFICATION PURSUANT TO 22 NYCRR §202.8-b
I, Steven A. Feldman, Esq., an attorney duly licensed to practice law before this Court and the
Courts of the State of New York, hereby certify as follows:
Pursuant to 22 NYCRR §202.8-b of the Rules of this Court, the accompanying Emergency
Affirmation was prepared using a word processing system (Microsoft Word), and that I have relied upon
that system to prepare the instant Certification.
The accompanying Emergency Affirmation is in 12-point typeface and contains 1,429 words,
excluding the parts of the documents that are exempt by 22 NYCRR §202.8-b.
The within submission is therefore complicit with the applicable rules of this Court.
Dated: August 18, 2023
____________________________________
Steven A. Feldman, Esq.
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EXHIBIT “1”
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LAW OFFICE OF STEVEN A. FELDMAN & ASSOCIATES, PLLC
763 DOGWOOD AVENUE
WEST HEMPSTEAD, NY 11552
TEL: 516-535-9756 FAX: 516-213-0245
STEVEN@SAFESQ.NET
Thursday, August 17, 2023
VIA EMAIL
Carey Prendergast, Individually &
On behalf of K.T. Brewing, Inc. &
Village Kava Bar, Inc.
RE: Kava Girl, LLC et. al., v. Carey Prendergast, et. al.,
Notice Pursuant to 22 NYCRR §202.7(f)
As you are aware, this office is counsel to Mr. Christopher Wierzbicki. This letter is intended to notify
you of our office’s intention to file an emergency order to show cause seeking an order, amongst other things,
pursuant to CPLR §6301 and 6311, preliminarily enjoining and restraining you, and your related entities,
Village Kava Bar, Inc., and K.T. Brewing, Inc., from further operations of a kava bar at the location known as
71 Broadway Greenlawn, New York. In addition, be advised that said Order to Show Cause shall likewise seek
an immediate order enjoining and restraining you, the foregoing entities, as well as all persons known and
unknown acting on your behalf or in concert with either yourself, Village Kava Bar, Inc., or K.T. Brewing, Inc.,
from further dissipating of any assets belonging to our clients. Finally, be advised that amongst the requested
relief is an order immediately restoring plaintiffs to possession of the property known as 71 Broadway,
Greenlawn, New York and further restraining any interreference or nuisance by you, Village Kava Bar, Inc.,
and K.T. Brewing, Inc., of plaintiffs’ use and enjoyment of said premises.
Our office shall file this Order to Show Cause on Friday August 18, 2023 at 2:30 p.m. electronically
on the New York State Court Electronic Filing System, for the New York State Supreme Court for the County
of Nassau, located at 100 Supreme Court Drive, Mineola, New York 11501.
Should you have any questions please feel free to contact me at the above referenced telephone
number. Thank you for your time and attention to this matter.
Most Sincerely,
Steven A. Feldman, Esq.
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Thursday, August 17, 2023 at 15:02:55 Eastern Daylight Time
Subject: Kava Girl, LLC et. al., v. Carey Prendergast, et. al., No7ce Pursuant to 22 NYCRR §202.7(f)
Date: Thursday, August 17, 2023 at 2:50:45 PM Eastern Daylight Time
From: Steven Feldman
To: Info@KTBrewing.com
CC: Li7ga7on Department
AEachments: 20230817 Kava Girl No7ce LeWer 22 NYCRR s. 2027 f .pdf
Please see aWached correspondence.
STEVEN A. FELDMAN, ESQ.
763 DOGWOOD AVENUE
WEST HEMPSTEAD, NY 11552
516-500-8057 MAIN
516-535-9756 DIRECT
516-537-8357 MOBILE
516-213-0245 FAX
STEVEN@SAFESQ.NET
CONFIDENTIAL COMMUNICATION
This message is being sent by or on behalf of a lawyer. This message is covered by the Electronic
Communication Privacy Act, 18 U.S.C. Sections 2510-2515, it is intended for the sole use of the intended
recipient and may contain information, which is privileged, confidential, or otherwise legally exempt
from disclosure. If you received this message in error, please notify the sender immediately by replying
to this e-mail, by telephone at 516-500-8057 and delete all copies of the message from your computer.
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LAW OFFICE OF STEVEN A. FELDMAN & ASSOCIATES, PLLC
763 DOGWOOD AVENUE
WEST HEMPSTEAD, NY 11552
TEL: 516-535-9756 FAX: 516-213-0245
STEVEN@SAFESQ.NET
Friday, August 18, 2023
VIA EMAIL
Carey Prendergast, Individually &
On behalf of K.T. Brewing, Inc. &
Village Kava Bar, Inc.
RE: Kava Girl, LLC et. al., v. Carey Prendergast, et. al.,
Additional Notice Pursuant to 22 NYCRR §202.7(f)
Cease And Desist Notice
Dear Mr. Prendergast:
As you are aware our office, on behalf of Kava Girl, LLC (“Kava Girl”) provided you with notice
pursuant to 22 NYCRR §202.7(f) of our intention to proceed with the filing of an order to show cause seeking
immediate injunctive relief. I now write to advise you that our office has received notice of your intention to
demolish the interior of the premises between today and over the course of the upcoming weekend.
In light of your failure to communicate with us, and your publication of your intentions to renovate
over the weekend notwithstanding our express objection, we must reiterate that you cease-and-desist from
undertaking any modification ameliorative or otherwise to the premises, alter any portion known as 71
Broadway, Greenlawn, New York.
This letter shall therefore serve as a cease-and-desist notice and as additional notice pursuant to 22
NYCRR 202.7(f) of our office’s intention to proceed with the presentment of an emergency order to show
cause, which may also be brought ex parte in light of your impending destruction of corporate assets, seeking
an immediate temporary restraining order against.
We will be appearing before the Supreme Court of the State of New York, County of Nassau located
at 100 Supreme Court Drive, Mineola, New York 11501 at 2:30 p.m., this afternoon.
Be guided accordingly.
Most Sincerely,
Steven A. Feldman, Esq.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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KAVA GIRL, LLC, by CHRISTOPHER WIERZBICKI,
individually and derivatively, and JACQUELINE INDEX NO.:
KAGIWADA, individually,
AFFIDAVIT IN SUPPORT
Plaintiffs,
-against-
CAREY PRENDERGAST, KT BREWING CORP.,
VILLAGE KAVA BAR, INC.,
Defendants.
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STATE OF NEW YORK }
} s.s.
COUNTY OF NASSAU }
CHRISTOPHER WIERZBICKI, being duly sworn, deposes and says:
1. That I have first-hand knowledge of the facts and circumstances giving rise to this dispute between
the parties and as to the events that transpired between the individual shareholder of K.T Brewing and
Village Kava, defendant Prendergast, and the primary plaintiff, Kava Girl and its members, myself
and Ms. Jacqueline Kagiwada.
2. That I submit this affidavit as a member of Kava Girl, LLC and in my individual capacity, in support
of the instant order to show cause that seeks an order, amongst other things, enjoining and restraining
defendants from taking any further action in their efforts to constructively evict plaintiffs from the
premises known as 71 Broadway, Greenlawn, New York. In addition, plaintiffs respectfully seek an
order immediately restraining any and all assets of Village Kava by virtue of the fraud perpetrated
upon plaintiffs by defendants in duping Kava Girl to provide cash, improvements, equipment,
inventory and the like only to later be wrongfully ousted by our partner, Prendergast. Finally, amongst
the requested relief is that this Court issue a restraining order enjoining defendants from further
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dissipating the trade secrets and confidential information defendants came to learn through our
dealings as same are expressly protected from disclosure by virtue of the non-disclosure agreement.
Exhibit “B”.
3. That I have read the accompanying affirmation of my individual attorneys, the Law Office of Steven
A. Feldman & Associates, PLLC and incorporate by reference the statements contained therein and
likewise request that this Court immediately entertain the instant application given the exigent
circumstances described.
4. That plaintiffs, Kava Girl, LLC and Ms. Jacqueline Kagiwada join in the relief sought by way of this
order to show cause.
5. Absent this Court’s intervention by way of an injunction, Kava Girl, Ms. Kagiwada and I, will suffer
irreparable harm unless immediate action is taken. The harm includes financial loss, theft, breach of
contract, diversion of funds and potential dissolution of the business.
6. The NDA executed by Prendergast expressly authorizes the issuance of an injunction in case of his
breach. Therefore, to protect our rights and interest this Court must issue an injunction.
7. Prendergast, the sole shareholder of defendant, KT Brewing, and owner of a lease agreement relevant
to the use and occupancy of 71 Broadway, Greenlawn, New York, negotiated a license agreement with
Kava Girl in April 2023. This agreement allowed Kava Girl to operate a kava bar in the premises and
further incorporated the underlying lease agreement. Exhibit “A”.
8. Under the terms of the license agreement, Kava Girl was obligated to pay a monthly fee of $1,800 as
rent directly to the owner/landlord of the premises.
9. As detailed in the underlying Complaint, the allegations of which are fully incorporated herein by
reference for the sake of brevity, defendant Prendergast has breached the terms of the license
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agreement by virtue of his efforts to constructively evict plaintiffs despite plaintiffs’ full compliance
with the terms of the agreement.
10. Prior to Kava Girl's involvement, the premises were occupied by Village Kava, also owned by
defendant Prendergast. Village Kava accumulated substantial debt and needed additional capital to
continue its operations.
11. The reason for this was because Village Kava and KT Brewing received seed money from a third-
party by the name of OK Botanicals to open their kava bar. However, they breached their contract with
OK Botanicals, leading to OK Botanicals reclaiming its inventory and supplies, devastating Village
Kava financially.
12. It is after this happened that defendant Prendergast sought capital from Kava Girl, which at the time,
we thought was in good faith.
13. During those negotiations, we reached an agreement to utilize the premises for the kava bar under the
brand name 'Kava Girl'.
14. A non-disclosure agreement (NDA) was executed on April 25, 2023, which expressly acknowledges
the inherent harm and prejudice to be sustained by plaintiff in the event of a breach of defendant’s
obligations to honor its confidentiality. Exhibit “B”, ¶5.
15. To address the financial crisis Prendergast’s kava bar was facing following OK Botanicals
repossession of essentially everything, Kava Girl diverted funds from another project and infused cash
into the Greenlawn location. This covered all outstanding bills, including utilities, employee wages,
and suppliers, amounting to over $35,000.
16. During our dealings, Prendergast represented that Village Kava was out of business and did not pose
a threat to Kava Girl. Relying on these representations, we reviewed and settled some of Village Kava's
debts to ensure the success of our new business venture.
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17. Plaintiffs, Kagiwada and I, invested nearly $100,000 in the Kava Girl Greenlawn location and devoted
countless hours to its operation and promotion.
18. We anticipated profits from this location and three others under the Kava Girl brand, amounting to
over $1,000,000 annually.
19. Significantly, Prendergast represented himself to the public as a partner and incoming member of the
Kava Girl operations. He attended meetings and had day-to-day operational control.
20. Unfortunately, not long after the operations of Kava Girl at the Greenlawn location, Ms. Kagiwada
and I discovered discrepancies in inventory.
21. Security camera footage revealed Prendergast and his girlfriend disabling the cameras, diverting cash
payments, and instructing the bartender to not report sales through the point-of-sale system provided
by Kava Girl.
22. It is through the security camera recordings that we discovered that Prendergast and his girlfriend
engaged in a pattern of stealing, looting, and diverting funds from the business. It is suspected that
they have wrongfully diverted approximately $25,000 from Kava Girl's business.
23. Defendant Prendergast has further disrupted the operations of the business by locking us out of the
office, inventory room.
24. On August 12, 2023, Prendergast attempted to terminate his association with Kava Girl, and it is
believed that he has since changed the locks to the premises. As of that date, he has disabled the
security surveillance, and tried to access Kava Girl's bank accounts to divert funds to himself.
25. On August 13, 2023, Village Kava began advertising on social media, claiming that the location was
closed for renovations and intended to resume business, causing confusion and potential grave harm
to Kava Girl. See Exhibit “C”.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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KAVA GIRL, LLC, by CHRISTOPHER WIERZBICKI,
individually and derivatively, JACQUELINE INDEX NO.:
KAGIWADA, individually,
Plaintiffs,
-against-
CAREY PRENDERGAST, KT BREWING CORP.,
VILLAGE KAVA BAR, INC.,
Defendants.
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PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF ORDER TO SHOW CAUSE
AND APPLICATION FOR TEMPORARY RESTRAINING ORDER
LAW OFFICE OF STEVEN A. FELDMAN
& ASSOCIATES PLLC
Attorneys for Plaintiff, Christopher Wierzbicki
763 Dogwood Avenue
West Hempstead, New York 11552
Telephone: (516) 537-8357
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Plaintiffs, Kava Girl, LLC, Christopher Wierzbicki and Jacqueline Kagiwada, respectfully submit
this memorandum of law in support of their joint application for immediate injunctive relief and for such
other relief as this Court may deem just and proper.
PRELIMINARY STATEMENT
Defendant Carey Prendergast (“Prendergast”), as the sole shareholder of KT Brewing Corp. (“KT
Brewing”), negotiated a license agreement with plaintiff, Kava Girl, LLC in April 2023. (“Exhibit A” to
the accompanying Verified Complaint). This license agreement granted Kava Girl the right to operate a
kava bar at the premises located at 71 Broadway, Greenlawn, New York, under the brand name ‘Kava
Girl’. The agreement stipulated that Kava Girl pay the monthly rent of $1,800 direct to the owner/landlord.
It was agreed upon that Kava Girl would invest substantial funds and resources to renovate the
location, purchase necessary equipment, and stock inventory. In reliance on defendants’ representations,
plaintiffs expended significant amount of time, energy, and capital to fulfill their obligations under the
license agreement and their agreement with defendant Prendergast in establishing the Greenlawn Location
known as Kava Girl Greenlawn, LLC. However, numerous breaches occurred, giving rise to several claims
against defendants as further enumerated in the accompanying Verified Complaint.
First, defendant Prendergast breached his agreement with the individual plaintiffs, Wierzbicki and
Kagiwada. Defendant Prendergast represented that his prior entity, Village Kava Bar, Inc., (“Village
Kava”), was no longer operations and did not pose a threat to Kava Girl’s business. Relying on this
representation, plaintiffs agreed to invest in the venture and resolve the debts owed by Village Kava.
However, it has been discovered that Village Kava resumed or is in the process of attempting to resume,
business operations, creating a direct competition to Kava Girl. This breach has resulted in substantial
financial losses and damages to plaintiffs.
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Defendant Prendergast, individually and via the corporate entities, KT Brewing and Village Kava
further violated his agreement with plaintiffs since the defendant’s endeavor to re-launch Village Kava,
(again in direct competition with the Kava Girl brand), caused defendant to disclose confidential
information related to the Kava Girl brand in direct violation of the party’s non-disclosure agreement
thereby inherently causing irreparable harm and injury to plaintiffs.
Additionally, as further detailed in the accompanying Verified Complaint, defendants have
violated the terms of the party’s agreement and inherently jeopardized plaintiffs’ business by engaging in
fraudulent activities detrimental to the business. Security camera footage revealed a persistent pattern of
stealing, looting, and diverting cash payments from customers directing to defendant Prendergast and/or
to his cohorts including without limitation his girlfriend, without reporting sales through the point-of-sale
system. These actions not only constitute a breach of the agreement but have also resulted in significant
financial losses to plaintiffs and the dissipation of their capital contributions and profits.
Second, defendants have violated the terms of the party’s license agreement by virtue of actions
taken by defendants to wrongfully oust plaintiffs from their lawful use and occupancy of the Greenlawn
location thereby depriving plaintiffs of the bargain inherently negotiated within said agreement. Notably,
plaintiffs' to date remain in full compliance with their obligations under the license agreement making
such efforts impermissible under its express terms.
Lastly, defendants’ actions demonstrate a clear case of actual fraud. As noted, security camera
footage has revealed a persistent pattern of stealing and looting and has also revealed defendant’s
intentional disabling of the security cameras. The defendant, individually and via the assistance of his
girlfriend as well as others known and unknown, has intentionally locked plaintiffs out of the premises,
has dismantled Kava Girl’s signage, and made attempts to access Kava Girl’s bank accounts through
unauthorized means. Such conduct exhibits a willful intention to deceive and unlawfully divert funds and
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assets belonging to Kava Girl for personal gain. These actions on the part of the defendants have caused
immense harm to plaintiffs and their business.
In light of the aforementioned breaches and fraudulent actions, prior to commencing this action,
plaintiffs attempted to communicate with defendant Prendergast via corporate counsel. Despite plaintiff’s
efforts to avoid litigation, defendant Prendergast failed to respond and has since furthered his efforts to
wrongfully dispossess plaintiffs from their Greenlawn location. Consequently, plaintiffs commenced this
action which ultimately seeks, amongst other things, full restitution of all misappropriated funds, a return
of all Kava Girl’s assets and equipment, full reimbursement of all losses suffered, including operating
capital, financial investments and damages arising from defendants’ clear breach of contract and
fraudulent actions.
Initially, however, to maintain the status quo pending an ultimate resolution of the claims, plaintiffs
require immediate order enjoining defendants from further efforts to cancel plaintiffs’ license agreement
relevant to the Greenlawn location, termination of any competing business operations conducted under
Village Kava, in direct violation of the partnership agreement and defendant’s fiduciary duties; an order
directing defendants to cease and deist all unauthorized access attempts to Kava Girl’s bank accounts and
return any unlawfully obtained funds as well as an immediate cessation of any further fraudulent actions
or interference in the operations of Kava Girl’s business.
STATEMENT OF FACTS
For the sake of brevity, the Court is respectfully referred to the Verified Complaint and exhibits
thereto (the “Complaint”), and the Affidavit of Christopher Wierzbicki for a full recitation of the relevant
facts and circumstances in this action.
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ARGUMENT
Yellowstone Injunction
Defendant Prendergast is the sole shareholder of KT Brewing, which is the entity that owns a lease
relative to the Greenlawn location, 71 Broadway, Greenlawn, New York. On July 15, 2023, KT Brewing
and plaintiff, Kava Girl entered into a license agreement. A copy of this agreement is annexed as “Exhibit
A” to the accompanying complaint. This license agreement permits the use and occupancy of the premises
for the operation of a kava
Preview
FILED: NASSAU COUNTY CLERK 10/30/2023 06:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/30/2023 EXHIBIT “B” FILED: NASSAU COUNTY CLERK 10/30/2023 08/21/2023 06:45 09:00 PM AM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 12 RECEIVED NYSCEF: 10/30/2023 08/21/2023 1 of 6 FILED: NASSAU COUNTY CLERK 10/30/2023 08/21/2023 06:45 09:00 PM AM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 12 RECEIVED NYSCEF: 10/30/2023 08/21/2023 2 of 6 FILED: NASSAU COUNTY CLERK 10/30/2023 08/21/2023 06:45 09:00 PM AM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 12 RECEIVED NYSCEF: 10/30/2023 08/21/2023 3 of 6 FILED: NASSAU COUNTY CLERK 10/30/2023 08/21/2023 06:45 09:00 PM AM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 12 RECEIVED NYSCEF: 10/30/2023 08/21/2023 4 of 6 FILED: NASSAU COUNTY CLERK 10/30/2023 08/21/2023 06:45 09:00 PM AM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 12 RECEIVED NYSCEF: 10/30/2023 08/21/2023 5 of 6 FILED: NASSAU COUNTY CLERK 10/30/2023 08/21/2023 06:45 09:00 PM AM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 12 RECEIVED NYSCEF: 10/30/2023 08/21/2023 6 of 6 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 5 RECEIVED NYSCEF: 10/30/2023 08/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------------------------------------X KAVA GIRL, LLC, by CHRISTOPHER WIERZBICKI, individually and derivatively, JACQUELINE INDEX NO.: KAGIWADA, individually, EMERGENCY AFFIRMATION Plaintiffs, -against- CAREY PRENDERGAST, KT BREWING CORP., VILLAGE KAVA BAR, INC., Defendants. --------------------------------------------------------------------X STEVEN A. FELDMAN, ESQ., an attorney duly admitted to practice law before this Court and the Courts of the State of New York, hereby affirms the following under the penalty of perjury: 1. That I am the principal of the Law Office of Steven A. Feldman & Associates, PLLC, the attorneys for Mr. Christopher Wierzbicki, one of the plaintiffs herein. 2. All plaintiffs, i.e. Kava Girl, LLC and Jacqueline Kagiwada, join in this. 3. That I am familiar with the facts and circumstances to be had herein by virtue of my review of the file maintained by my office and by virtue of my conversations had with plaintiffs. 4. That this affirmation is respectfully submitted in support of the plaintiffs’ within order to show cause seeking a preliminary injunction and temporary restraining order which enjoins and restrains the defendants Carey Prendergast (“Prendergast”), KT Brewing Corp.,(“KT Brewing”), and Village Kava Bar, Inc., (“Village Kava”), including their respective agents, employees, servants, attorneys, representatives, and other persons acting on their behalf or in concert with them in any manner or by any means: (i) from taking any action in furtherance of the termination of the license agreement, including issue any notice, to interfere with plaintiffs’ possessory rights of the premises known as 71 Broadway, Greenlawn, New York (“premises”) and deeming any such action taken unlawful; (ii) 1 of 7 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 5 RECEIVED NYSCEF: 10/30/2023 08/18/2023 pursuant to CPLR§§ 6301 and 6311, from taking any further action on or on behalf of or in furtherance of its operation as a kava bar from the premises, including without limitation, marketing, distributing, releasing advertising (including on social media), and offering to sell kava products from the premises; (iii) from the unauthorized use, disclosure, and exploitation of plaintiffs’ trade secrets, concepts, goodwill, reputation and/or other propriety information belonging to the Kava Girl brand, as defined within the parties non-disclosure agreement (“NDA”) and Verified Complaint; (iv) directing defendants to restore plaintiffs to immediate possession of the premises pursuant to the terms of the license agreement so that plaintiffs may resume business operations; (vi) an order permitting plaintiffs, their respective agents, assignees and/or employees, to change the locks on the premises and take any such further action necessary in resuming normal business operations as a kava bar, including without limitation, rehanging the Kava Girl signage and (vii) awarding plaintiffs with such other and different relief as this Court may deem just and proper. 5. Plaintiffs have provided the requisite 22 NYCRR §202.7(f) notice to defendants of the bringing of this order to show cause via written correspondence dated August 17, 2023, notifying defendants of the date, time, location, and relief being requested. A copy of this correspondence has been annexed as Exhibit “1” to this Affirmation. 6. Additional notice was also provided prior to the presentment of this application, a copy of which has also been annexed as Exhibit “1” to this Affirmation. 7. Plaintiffs have not requested prior similar relief from this Court or any other court of competent jurisdiction. 8. For the reasons set forth herein, it is respectfully submitted that the circumstances of this dispute warrant this Court’s immediate review of the application and further justify the imposition of the requested restraints to protect plaintiffs’ interest and respective rights. 2 of 7 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 5 RECEIVED NYSCEF: 10/30/2023 08/18/2023 9. Although a full recitation of the facts giving rise to this matter are set forth in detail in the accompanying Verified Complaint, the relevant facts for purposes of this affirmation, are as follows. 10. Defendant Carey Prendergast, the sole shareholder of KT Brewing Corp. negotiated a license agreement with, Kava Girl, LLC, in April 2023 (Exhibit A of the accompanying Verified Complaint). The licensing agreement granted Kava Girl the exclusive right to operate a kava bar under the brand name 'Kava Girl' at 71 Broadway, Greenlawn, New York. Kava Girl was also obligated thereby to pay a monthly rent of $1,800 directly to the owner/landlord. 11. Relying on the representations made by the defendants, plaintiffs invested significant resources, time, energy, and capital to renovate the premises, procure necessary equipment, and stock inventory. However, numerous breaches of the agreement have occurred, leading to multiple claims against the defendants, as outlined in the Verified Complaint. 12. Defendant Prendergast breached his agreement with plaintiffs by falsely representing that his prior entity, Village Kava Bar, Inc., was no longer in operation and posed no competition to Kava Girl. In reliance on this representation, plaintiffs invested in the venture and resolved Village Kava's outstanding debts which have now been discovered to be odious debts. 13. Recently, we have learned that Village Kava has either resumed or is attempting to resume business operations, thus directly competing with Kava Girl. This breach has resulted in significant financial losses and damages for plaintiffs. 14. Furthermore, defendant Prendergast, both individually and through the corporate entities of KT Brewing and Village Kava, violated his agreement by disclosing confidential information related to the Kava Girl brand. This unauthorized disclosure is a direct violation of the non-disclosure agreement, causing irreparable harm and injury to my clients. 3 of 7 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 5 RECEIVED NYSCEF: 10/30/2023 08/18/2023 15. The non-disclosure agreement expressly provides, in relevant part that: Injunctive Relief. A breach of any of the promises or agreements contained herein will result in irreparable and continuing damage to Releasor for which there will be no adequate remedy at law, and Releasor shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate). See Exhibit “B” to the accompanying Verified Complaint. 16. Thus, defendants breach of this agreement, by using proprietary methods and information in direct violation of the lawful and legitimate restraints negotiated in the non-disclosure agreement. 17. In addition, defendants engaged in fraudulent activities that have jeopardized plaintiffs’ business. Security camera footage has revealed a pattern of stealing, looting, and diverting cash payments, which were not reported through the point-of-sale system. Specifically, “raiding” the cash register amounts to a clear breach of defendants’ fiduciary duties owed to his fellow partners as well as embezzlement. 18. Further, these actions not only constitute breaches of defendants aforementioned fiduciary duties, but also of the promises and representations made by defendants to plaintiffs, which have since resulted in significant financial losses and the dissipation of plaintiffs’ capital contributions and profits. 19. Second, the defendants have wrongfully ousted plaintiffs from their lawful use and occupancy of the Greenlawn location, violating the terms of the license agreement. Despite plaintiffs’ full compliance with their obligations under the agreement, the defendants have made efforts to remove them from the premises, depriving them of the agreed-upon use and occupancy. 20. Lastly, the defendants' actions demonstrate clear cases of actual fraud. Security camera footage reveals a persistent pattern of stealing, looting, and the intentional disabling of the security cameras. The defendants have intentionally locked plaintiffs’ out of the premises, dismantled Kava Girl's signage, and unlawfully attempted to access their bank accounts. These deliberate actions indicate an intent to 4 of 7 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 5 RECEIVED NYSCEF: 10/30/2023 08/18/2023 deceive and unlawfully divert funds and assets for personal gain, causing immense harm to plaintiffs’ and their business. 21. Prior to initiating this legal action, Plaintiff’s attempted to communicate with defendant Prendergast to resolve the issues without resorting to litigation. Unfortunately, the defendant failed to respond and has since escalated his efforts to wrongfully dispossess plaintiffs from their Greenlawn location. As a result, plaintiffs have been compelled to commence this action, seeking full restitution of all misappropriated funds, the return of all Kava Girl's assets and equipment, and full reimbursement for all losses suffered, including operating capital, financial investments, and damages resulting from the defendants' clear breach of contract and fraudulent actions. 22. To maintain the status quo pending a resolution of these claims, plaintiffs urgently require an immediate order enjoining the defendants from further efforts to cancel the license agreement related to the Greenlawn location. 23. They seek termination of any competing business operations conducted under Village Kava, in direct violation of the partnership agreement and defendant's fiduciary duties. 24. Additionally, plaintiffs request an order directing the defendants to cease and desist all unauthorized access attempts to Kava Girl's bank accounts and to return any unlawfully obtained funds. 25. Finally, plaintiffs seek an immediate cessation of any further fraudulent actions or interference in the operations of Kava Girl's business. 26. Considering the serious nature of the breaches and fraudulent actions committed by the defendants, coupled with the terms of the non-disclosure agreement which authorize immediate injunctive relief, plaintiffs respectfully urge this Court to immediate entertain and grant this application for the issuance of such relief. 5 of 7 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 5 RECEIVED NYSCEF: 10/30/2023 08/18/2023 27. Notably, such urgent relief is necessary to safeguard plaintiffs’ interests and preserve the viability of their business. WHEREFORE, it is respectfully requested that this Court immediate entertain the instant application and thereupon grant the requested relief and further award plaintiffs with such other and different relief as this Court may deem just and proper. Dated: August 18, 2023 __________________________________ Steven A. Feldman, Esq. 6 of 7 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 5 RECEIVED NYSCEF: 10/30/2023 08/18/2023 CERTIFICATION PURSUANT TO 22 NYCRR §202.8-b I, Steven A. Feldman, Esq., an attorney duly licensed to practice law before this Court and the Courts of the State of New York, hereby certify as follows: Pursuant to 22 NYCRR §202.8-b of the Rules of this Court, the accompanying Emergency Affirmation was prepared using a word processing system (Microsoft Word), and that I have relied upon that system to prepare the instant Certification. The accompanying Emergency Affirmation is in 12-point typeface and contains 1,429 words, excluding the parts of the documents that are exempt by 22 NYCRR §202.8-b. The within submission is therefore complicit with the applicable rules of this Court. Dated: August 18, 2023 ____________________________________ Steven A. Feldman, Esq. 7 of 7 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 6 RECEIVED NYSCEF: 10/30/2023 08/18/2023 EXHIBIT “1” FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 6 RECEIVED NYSCEF: 10/30/2023 08/18/2023 LAW OFFICE OF STEVEN A. FELDMAN & ASSOCIATES, PLLC 763 DOGWOOD AVENUE WEST HEMPSTEAD, NY 11552 TEL: 516-535-9756 FAX: 516-213-0245 STEVEN@SAFESQ.NET Thursday, August 17, 2023 VIA EMAIL Carey Prendergast, Individually & On behalf of K.T. Brewing, Inc. & Village Kava Bar, Inc. RE: Kava Girl, LLC et. al., v. Carey Prendergast, et. al., Notice Pursuant to 22 NYCRR §202.7(f) As you are aware, this office is counsel to Mr. Christopher Wierzbicki. This letter is intended to notify you of our office’s intention to file an emergency order to show cause seeking an order, amongst other things, pursuant to CPLR §6301 and 6311, preliminarily enjoining and restraining you, and your related entities, Village Kava Bar, Inc., and K.T. Brewing, Inc., from further operations of a kava bar at the location known as 71 Broadway Greenlawn, New York. In addition, be advised that said Order to Show Cause shall likewise seek an immediate order enjoining and restraining you, the foregoing entities, as well as all persons known and unknown acting on your behalf or in concert with either yourself, Village Kava Bar, Inc., or K.T. Brewing, Inc., from further dissipating of any assets belonging to our clients. Finally, be advised that amongst the requested relief is an order immediately restoring plaintiffs to possession of the property known as 71 Broadway, Greenlawn, New York and further restraining any interreference or nuisance by you, Village Kava Bar, Inc., and K.T. Brewing, Inc., of plaintiffs’ use and enjoyment of said premises. Our office shall file this Order to Show Cause on Friday August 18, 2023 at 2:30 p.m. electronically on the New York State Court Electronic Filing System, for the New York State Supreme Court for the County of Nassau, located at 100 Supreme Court Drive, Mineola, New York 11501. Should you have any questions please feel free to contact me at the above referenced telephone number. Thank you for your time and attention to this matter. Most Sincerely, Steven A. Feldman, Esq. FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 6 RECEIVED NYSCEF: 10/30/2023 08/18/2023 Thursday, August 17, 2023 at 15:02:55 Eastern Daylight Time Subject: Kava Girl, LLC et. al., v. Carey Prendergast, et. al., No7ce Pursuant to 22 NYCRR §202.7(f) Date: Thursday, August 17, 2023 at 2:50:45 PM Eastern Daylight Time From: Steven Feldman To: Info@KTBrewing.com CC: Li7ga7on Department AEachments: 20230817 Kava Girl No7ce LeWer 22 NYCRR s. 2027 f .pdf Please see aWached correspondence. STEVEN A. FELDMAN, ESQ. 763 DOGWOOD AVENUE WEST HEMPSTEAD, NY 11552 516-500-8057 MAIN 516-535-9756 DIRECT 516-537-8357 MOBILE 516-213-0245 FAX STEVEN@SAFESQ.NET CONFIDENTIAL COMMUNICATION This message is being sent by or on behalf of a lawyer. This message is covered by the Electronic Communication Privacy Act, 18 U.S.C. Sections 2510-2515, it is intended for the sole use of the intended recipient and may contain information, which is privileged, confidential, or otherwise legally exempt from disclosure. If you received this message in error, please notify the sender immediately by replying to this e-mail, by telephone at 516-500-8057 and delete all copies of the message from your computer. Page 1 of 1 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 6 RECEIVED NYSCEF: 10/30/2023 08/18/2023 LAW OFFICE OF STEVEN A. FELDMAN & ASSOCIATES, PLLC 763 DOGWOOD AVENUE WEST HEMPSTEAD, NY 11552 TEL: 516-535-9756 FAX: 516-213-0245 STEVEN@SAFESQ.NET Friday, August 18, 2023 VIA EMAIL Carey Prendergast, Individually & On behalf of K.T. Brewing, Inc. & Village Kava Bar, Inc. RE: Kava Girl, LLC et. al., v. Carey Prendergast, et. al., Additional Notice Pursuant to 22 NYCRR §202.7(f) Cease And Desist Notice Dear Mr. Prendergast: As you are aware our office, on behalf of Kava Girl, LLC (“Kava Girl”) provided you with notice pursuant to 22 NYCRR §202.7(f) of our intention to proceed with the filing of an order to show cause seeking immediate injunctive relief. I now write to advise you that our office has received notice of your intention to demolish the interior of the premises between today and over the course of the upcoming weekend. In light of your failure to communicate with us, and your publication of your intentions to renovate over the weekend notwithstanding our express objection, we must reiterate that you cease-and-desist from undertaking any modification ameliorative or otherwise to the premises, alter any portion known as 71 Broadway, Greenlawn, New York. This letter shall therefore serve as a cease-and-desist notice and as additional notice pursuant to 22 NYCRR 202.7(f) of our office’s intention to proceed with the presentment of an emergency order to show cause, which may also be brought ex parte in light of your impending destruction of corporate assets, seeking an immediate temporary restraining order against. We will be appearing before the Supreme Court of the State of New York, County of Nassau located at 100 Supreme Court Drive, Mineola, New York 11501 at 2:30 p.m., this afternoon. Be guided accordingly. Most Sincerely, Steven A. Feldman, Esq. FILED: NASSAU COUNTY CLERK 10/30/2023 06:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/30/2023 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 8 RECEIVED NYSCEF: 10/30/2023 08/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------------------------------------X KAVA GIRL, LLC, by CHRISTOPHER WIERZBICKI, individually and derivatively, and JACQUELINE INDEX NO.: KAGIWADA, individually, AFFIDAVIT IN SUPPORT Plaintiffs, -against- CAREY PRENDERGAST, KT BREWING CORP., VILLAGE KAVA BAR, INC., Defendants. --------------------------------------------------------------------X STATE OF NEW YORK } } s.s. COUNTY OF NASSAU } CHRISTOPHER WIERZBICKI, being duly sworn, deposes and says: 1. That I have first-hand knowledge of the facts and circumstances giving rise to this dispute between the parties and as to the events that transpired between the individual shareholder of K.T Brewing and Village Kava, defendant Prendergast, and the primary plaintiff, Kava Girl and its members, myself and Ms. Jacqueline Kagiwada. 2. That I submit this affidavit as a member of Kava Girl, LLC and in my individual capacity, in support of the instant order to show cause that seeks an order, amongst other things, enjoining and restraining defendants from taking any further action in their efforts to constructively evict plaintiffs from the premises known as 71 Broadway, Greenlawn, New York. In addition, plaintiffs respectfully seek an order immediately restraining any and all assets of Village Kava by virtue of the fraud perpetrated upon plaintiffs by defendants in duping Kava Girl to provide cash, improvements, equipment, inventory and the like only to later be wrongfully ousted by our partner, Prendergast. Finally, amongst the requested relief is that this Court issue a restraining order enjoining defendants from further 1 of 5 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 8 RECEIVED NYSCEF: 10/30/2023 08/18/2023 dissipating the trade secrets and confidential information defendants came to learn through our dealings as same are expressly protected from disclosure by virtue of the non-disclosure agreement. Exhibit “B”. 3. That I have read the accompanying affirmation of my individual attorneys, the Law Office of Steven A. Feldman & Associates, PLLC and incorporate by reference the statements contained therein and likewise request that this Court immediately entertain the instant application given the exigent circumstances described. 4. That plaintiffs, Kava Girl, LLC and Ms. Jacqueline Kagiwada join in the relief sought by way of this order to show cause. 5. Absent this Court’s intervention by way of an injunction, Kava Girl, Ms. Kagiwada and I, will suffer irreparable harm unless immediate action is taken. The harm includes financial loss, theft, breach of contract, diversion of funds and potential dissolution of the business. 6. The NDA executed by Prendergast expressly authorizes the issuance of an injunction in case of his breach. Therefore, to protect our rights and interest this Court must issue an injunction. 7. Prendergast, the sole shareholder of defendant, KT Brewing, and owner of a lease agreement relevant to the use and occupancy of 71 Broadway, Greenlawn, New York, negotiated a license agreement with Kava Girl in April 2023. This agreement allowed Kava Girl to operate a kava bar in the premises and further incorporated the underlying lease agreement. Exhibit “A”. 8. Under the terms of the license agreement, Kava Girl was obligated to pay a monthly fee of $1,800 as rent directly to the owner/landlord of the premises. 9. As detailed in the underlying Complaint, the allegations of which are fully incorporated herein by reference for the sake of brevity, defendant Prendergast has breached the terms of the license 2 of 5 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 8 RECEIVED NYSCEF: 10/30/2023 08/18/2023 agreement by virtue of his efforts to constructively evict plaintiffs despite plaintiffs’ full compliance with the terms of the agreement. 10. Prior to Kava Girl's involvement, the premises were occupied by Village Kava, also owned by defendant Prendergast. Village Kava accumulated substantial debt and needed additional capital to continue its operations. 11. The reason for this was because Village Kava and KT Brewing received seed money from a third- party by the name of OK Botanicals to open their kava bar. However, they breached their contract with OK Botanicals, leading to OK Botanicals reclaiming its inventory and supplies, devastating Village Kava financially. 12. It is after this happened that defendant Prendergast sought capital from Kava Girl, which at the time, we thought was in good faith. 13. During those negotiations, we reached an agreement to utilize the premises for the kava bar under the brand name 'Kava Girl'. 14. A non-disclosure agreement (NDA) was executed on April 25, 2023, which expressly acknowledges the inherent harm and prejudice to be sustained by plaintiff in the event of a breach of defendant’s obligations to honor its confidentiality. Exhibit “B”, ¶5. 15. To address the financial crisis Prendergast’s kava bar was facing following OK Botanicals repossession of essentially everything, Kava Girl diverted funds from another project and infused cash into the Greenlawn location. This covered all outstanding bills, including utilities, employee wages, and suppliers, amounting to over $35,000. 16. During our dealings, Prendergast represented that Village Kava was out of business and did not pose a threat to Kava Girl. Relying on these representations, we reviewed and settled some of Village Kava's debts to ensure the success of our new business venture. 3 of 5 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 8 RECEIVED NYSCEF: 10/30/2023 08/18/2023 17. Plaintiffs, Kagiwada and I, invested nearly $100,000 in the Kava Girl Greenlawn location and devoted countless hours to its operation and promotion. 18. We anticipated profits from this location and three others under the Kava Girl brand, amounting to over $1,000,000 annually. 19. Significantly, Prendergast represented himself to the public as a partner and incoming member of the Kava Girl operations. He attended meetings and had day-to-day operational control. 20. Unfortunately, not long after the operations of Kava Girl at the Greenlawn location, Ms. Kagiwada and I discovered discrepancies in inventory. 21. Security camera footage revealed Prendergast and his girlfriend disabling the cameras, diverting cash payments, and instructing the bartender to not report sales through the point-of-sale system provided by Kava Girl. 22. It is through the security camera recordings that we discovered that Prendergast and his girlfriend engaged in a pattern of stealing, looting, and diverting funds from the business. It is suspected that they have wrongfully diverted approximately $25,000 from Kava Girl's business. 23. Defendant Prendergast has further disrupted the operations of the business by locking us out of the office, inventory room. 24. On August 12, 2023, Prendergast attempted to terminate his association with Kava Girl, and it is believed that he has since changed the locks to the premises. As of that date, he has disabled the security surveillance, and tried to access Kava Girl's bank accounts to divert funds to himself. 25. On August 13, 2023, Village Kava began advertising on social media, claiming that the location was closed for renovations and intended to resume business, causing confusion and potential grave harm to Kava Girl. See Exhibit “C”. 4 of 5 FILED: NASSAU COUNTY CLERK 10/30/2023 06:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/30/2023 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 9 RECEIVED NYSCEF: 10/30/2023 08/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------------------------------------X KAVA GIRL, LLC, by CHRISTOPHER WIERZBICKI, individually and derivatively, JACQUELINE INDEX NO.: KAGIWADA, individually, Plaintiffs, -against- CAREY PRENDERGAST, KT BREWING CORP., VILLAGE KAVA BAR, INC., Defendants. --------------------------------------------------------------------X PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF ORDER TO SHOW CAUSE AND APPLICATION FOR TEMPORARY RESTRAINING ORDER LAW OFFICE OF STEVEN A. FELDMAN & ASSOCIATES PLLC Attorneys for Plaintiff, Christopher Wierzbicki 763 Dogwood Avenue West Hempstead, New York 11552 Telephone: (516) 537-8357 1 of 15 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 9 RECEIVED NYSCEF: 10/30/2023 08/18/2023 Plaintiffs, Kava Girl, LLC, Christopher Wierzbicki and Jacqueline Kagiwada, respectfully submit this memorandum of law in support of their joint application for immediate injunctive relief and for such other relief as this Court may deem just and proper. PRELIMINARY STATEMENT Defendant Carey Prendergast (“Prendergast”), as the sole shareholder of KT Brewing Corp. (“KT Brewing”), negotiated a license agreement with plaintiff, Kava Girl, LLC in April 2023. (“Exhibit A” to the accompanying Verified Complaint). This license agreement granted Kava Girl the right to operate a kava bar at the premises located at 71 Broadway, Greenlawn, New York, under the brand name ‘Kava Girl’. The agreement stipulated that Kava Girl pay the monthly rent of $1,800 direct to the owner/landlord. It was agreed upon that Kava Girl would invest substantial funds and resources to renovate the location, purchase necessary equipment, and stock inventory. In reliance on defendants’ representations, plaintiffs expended significant amount of time, energy, and capital to fulfill their obligations under the license agreement and their agreement with defendant Prendergast in establishing the Greenlawn Location known as Kava Girl Greenlawn, LLC. However, numerous breaches occurred, giving rise to several claims against defendants as further enumerated in the accompanying Verified Complaint. First, defendant Prendergast breached his agreement with the individual plaintiffs, Wierzbicki and Kagiwada. Defendant Prendergast represented that his prior entity, Village Kava Bar, Inc., (“Village Kava”), was no longer operations and did not pose a threat to Kava Girl’s business. Relying on this representation, plaintiffs agreed to invest in the venture and resolve the debts owed by Village Kava. However, it has been discovered that Village Kava resumed or is in the process of attempting to resume, business operations, creating a direct competition to Kava Girl. This breach has resulted in substantial financial losses and damages to plaintiffs. 2 of 15 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 9 RECEIVED NYSCEF: 10/30/2023 08/18/2023 Defendant Prendergast, individually and via the corporate entities, KT Brewing and Village Kava further violated his agreement with plaintiffs since the defendant’s endeavor to re-launch Village Kava, (again in direct competition with the Kava Girl brand), caused defendant to disclose confidential information related to the Kava Girl brand in direct violation of the party’s non-disclosure agreement thereby inherently causing irreparable harm and injury to plaintiffs. Additionally, as further detailed in the accompanying Verified Complaint, defendants have violated the terms of the party’s agreement and inherently jeopardized plaintiffs’ business by engaging in fraudulent activities detrimental to the business. Security camera footage revealed a persistent pattern of stealing, looting, and diverting cash payments from customers directing to defendant Prendergast and/or to his cohorts including without limitation his girlfriend, without reporting sales through the point-of-sale system. These actions not only constitute a breach of the agreement but have also resulted in significant financial losses to plaintiffs and the dissipation of their capital contributions and profits. Second, defendants have violated the terms of the party’s license agreement by virtue of actions taken by defendants to wrongfully oust plaintiffs from their lawful use and occupancy of the Greenlawn location thereby depriving plaintiffs of the bargain inherently negotiated within said agreement. Notably, plaintiffs' to date remain in full compliance with their obligations under the license agreement making such efforts impermissible under its express terms. Lastly, defendants’ actions demonstrate a clear case of actual fraud. As noted, security camera footage has revealed a persistent pattern of stealing and looting and has also revealed defendant’s intentional disabling of the security cameras. The defendant, individually and via the assistance of his girlfriend as well as others known and unknown, has intentionally locked plaintiffs out of the premises, has dismantled Kava Girl’s signage, and made attempts to access Kava Girl’s bank accounts through unauthorized means. Such conduct exhibits a willful intention to deceive and unlawfully divert funds and 3 of 15 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 9 RECEIVED NYSCEF: 10/30/2023 08/18/2023 assets belonging to Kava Girl for personal gain. These actions on the part of the defendants have caused immense harm to plaintiffs and their business. In light of the aforementioned breaches and fraudulent actions, prior to commencing this action, plaintiffs attempted to communicate with defendant Prendergast via corporate counsel. Despite plaintiff’s efforts to avoid litigation, defendant Prendergast failed to respond and has since furthered his efforts to wrongfully dispossess plaintiffs from their Greenlawn location. Consequently, plaintiffs commenced this action which ultimately seeks, amongst other things, full restitution of all misappropriated funds, a return of all Kava Girl’s assets and equipment, full reimbursement of all losses suffered, including operating capital, financial investments and damages arising from defendants’ clear breach of contract and fraudulent actions. Initially, however, to maintain the status quo pending an ultimate resolution of the claims, plaintiffs require immediate order enjoining defendants from further efforts to cancel plaintiffs’ license agreement relevant to the Greenlawn location, termination of any competing business operations conducted under Village Kava, in direct violation of the partnership agreement and defendant’s fiduciary duties; an order directing defendants to cease and deist all unauthorized access attempts to Kava Girl’s bank accounts and return any unlawfully obtained funds as well as an immediate cessation of any further fraudulent actions or interference in the operations of Kava Girl’s business. STATEMENT OF FACTS For the sake of brevity, the Court is respectfully referred to the Verified Complaint and exhibits thereto (the “Complaint”), and the Affidavit of Christopher Wierzbicki for a full recitation of the relevant facts and circumstances in this action. 4 of 15 FILED: NASSAU COUNTY CLERK 10/30/2023 08/18/2023 06:45 02:45 PM INDEX NO. 613304/2023 NYSCEF DOC. NO. 53 9 RECEIVED NYSCEF: 10/30/2023 08/18/2023 ARGUMENT Yellowstone Injunction Defendant Prendergast is the sole shareholder of KT Brewing, which is the entity that owns a lease relative to the Greenlawn location, 71 Broadway, Greenlawn, New York. On July 15, 2023, KT Brewing and plaintiff, Kava Girl entered into a license agreement. A copy of this agreement is annexed as “Exhibit A” to the accompanying complaint. This license agreement permits the use and occupancy of the premises for the operation of a kava