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FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018
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SUPREME COURT OF THE STATE OF NEW YORK SUMMONS
COUNTY OF NEW YORK Plaintiff designates
: NEW YORK County as the
CUSHMAN & WAKEFIELD, INC., : place of trial.
The basis of the venue is
Plaintiff,
Plaintiff's place of business.
v. : Plaintiff's Place of Business:
: 1290 Avenue of the
LAWRENCE TANNENBAUM, : Americas
New York, New York
Defendant. : 10104
To the above named Defendant:
You are summoned to answer the complaint in this action, and to serve a
hereby
of your answer, or if the complaint is not served with this summons, to serve a
copy
notice of appearance on the plaintiff's attorney(s) within days after the service of
twenty
this summons exclusive of the day of service, where service is made by delivery upon
you within the state, or within 30 days after completion of service where
personally
service is made in other manner. In case of your failure to appear or answer,
any
judgment will be taken against you default for the relief demanded in the complaint.
by
Dated: New York, New York
January 24, 2018
Yours,
By:
Jonath . Ber owitz
Lewis B bois Bisgaard & Smith, LLP
77 Water Street, 21*Floor
New York, New York 10005
(212) 232-1300
TO: Lawrence Tannenbaum
East 746 Apt. 22G
300 Street,
New York, New York 10021
4846-817/-3914.1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
CUSHMAN & WAKEFIELD, INC., : INDEX NO.:
:
Plaintiff, :
v. : COMPLAINT
:
LAWRENCE TANNENBAUM, :
Defendant. :
Plaintiff, CUSHMAN & WAKEFIELD, INC. ("CW"), by and through Lewis
Brisbois Bisgaard & Smith, LLP, its attorneys in the above-captioned action, files this
Complaint against Defendant, Lawrence Tannenbaum ("Tannenbaum"), and alleges as
follows, upon information and belief:
PRELIMINARY STATEMENT
1. In February 2009, Tannenbaum was engaged by CW as a real estate broker
based in New York.
2. his engagement as a mal estate broker with CW, Tannenbaum
During
received numerous advances from CW in a total amount in excess of $692,448.32, which
he agreed to repay to CW in the event his engagement as a broker for CW terminated.
3. On or about 26, 2012, Tannenbaum's engagement as a real estate
January
broker with CW terminated, at which point all outstanding advances made to
Tannenbaum became due and owing to CW.
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4. To date, Tannenbaum has failed to repay at least $692,448.32 advanced to
him during his engagement with CW. Tannenbaum has breached agreements and
duties owed to CW by, in part, failing to repay the monies due to CW. CW now seeks
to recover all damages caused Tannenbaum's wrongful conduct.
by
PARTIES
5. That at the time of the commencement of this action, Plaintiff CW is a
domestic business corporation, duly organized, authorized to transact business, and
existing
under and by virtue of the laws of the State of New York.
6. That at the time of the commencement of this action, Plaintiff CW
maintains its principal place of business at 1290 Avenue of the Americas, New York,
New York 10104.
7. Tannenbaum is an individual who, upon information and belief, resides in
New York and has a last known address at 300 East 74 Street, Apt. 22G, New
County
York, New York 10021.
FACTUAL BACKGROUND
8. On or about 9, 2009, Tannenbaum entered into a Section 3508
February
Agreement with CW.1 That same Tannenbaum and CW
Broker-Salesperson day,
Broker-Salesperson Agreement ("Rider").2 Pursuant
executed a Rider to Section 3508 to
.. _ --
1 Exhibit 1.
2 Exhibit 2.
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the Section 3508 Broker-Salesperson Agreement and the Rider, Tannenbaum agreed to
serve as a real estate broker based in CW's New York Midtown office.
9. On or about February 9, 2009, Taññenbaum executed a Drawing Account
Rider which states, in part: "[d]uring the period from February 9, 2009 to 8,
February
2012, [CW] shall: (1) provide you with a guaranteed draw at the rate of $35,000 per
annum, payable in equal installments of $1,458.33 (less withholdings, if
semi-monthly
appropriate) (the "Guaranteed Draw") and (2) make advances to you of (i)during the
period from 2009 to payable in equal semi-
February 9, February 8, 2010, $465,000,
instanments of $19,375 (less withholdings, if appropriate), (ii) during the
monthly
period from 2010 to payable in equal semi-
February 9, February 8, 2011, $365,000,
installments of $15,208.33 (less withholdings, if appropriate), (iii) during the
monthly
2011 to payable in equal semi-
period from February 9, February 8, 2012, $265,000,
installments of $11,041.67 (less withholdings, ifappropriate), ((i), (ii)and (iii)
monthly
Draw"
collectively, the "Recourse ("Guarañteed and the "Recourse Draw".
Draw")
"Draw")."3
collectively the
10, The Drawing
Account Rider further states "AMOUNTS ADVANCED TO
[TANNENBAUM] AS RECOURSE DRAW PAYMENTS ARE LOANS TO BE REPAID
UPON DEMAND."4 the Account Rider provides
TO [CW) Additionally, Drawing that,
"[i]f [Tannenbaum] fail[s] to repay [CW] the Recourse Draw as provided herein and
3 Exhibit 3.
* Exhibit 3.
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[CW] refers the collection of the unpaid amounts to legal counsel, [Tannenbaum] shall
attorneys' incurred."5
reimburse [CW] for all reasonable costs and fees
thereby
11. On or about
February 9, 2009, Tannenbaum executed a note
promissory
which states, in part: "I, Lawrence Tannenbaum, promise to to the order of [CW],
pay
upon termination of my engagement with [CW] the sum of $1,095,000.00 or so much
thereof as be advanced to me and remain hereunder."6 'I'he
may outstanding
promissory note also states that Tannenbaum "waive[s] demand, presentment, notice of
protest"
non-payment and and that he "agree[s] to pay all costs incurred by [CW] in
attorneys'
amounts due hereunder, including reasonable fees and court costs,
collecting
amount"
together with interest on the unpaid principal and "reaffirm[s] [his] promise
to pay all outstanding amounts owed pursuant to any other promissory note(s) [he has]
issued [CW]."7
to
12. Subsequently, on or about January 16, 2011, Tannenbaum executed an
amendment that, other things, modified the terms of Taññeñbaum's Guaranteed
among
Draw.8
13. The Section 3508 Broker Agreement, Rider, Drawing Account Rider,
note, and amendments thereto, are collectively referred to as the
promissory any
"Agreements."
5 Exhibit 3.
5 Exhibit 4.
7 Exhibit 4.
8 Exhibit 5,
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14. During his engagement with CW as a real estate broker, Tannenbaum
received his draw paid in semi-monthly installments under the Agreements, which he
promised to repay upon termination of his engagement.
15. Taññêñbaum's engagement with CW ended on or about January 26, 2012,
16. Taññêñbaum owes CW $692,448.32 as a principal obligation under the
Agreements. That balance, together with interest that has accrued (and continues to
in accordance with the terms of the Agreements, remains due and owing.
accrue)
17. CW has complied with all terms of the Agreements, and now demands
that Tannenbaum make payment in full of all obligations and monies due CW pursuant
to the terms of the Agreements.
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AS AND FOR A FIRST CAUSE OF ACTION
BREACH OF CONTRACT
18. CW incorporates and re-alleges each and every
allegation set forth above
in paragraphs 1-17 as though fully set forth herein.
19. CW and Tannenbaum entered into the Agreements, which are valid and
enforceable contracts that contain certain terms.
20. CW fully
natisfied and performed its duties and obligations pursuant to
the Agreements.
21. Tannenbaum failed to perform pursuant to the terms of the Agreements
to make payments on monies owed by Tannenbaum to CW, thereby
by failing timely
his duties and obligations under those contracts.
breaching
22. As a direct and proximate result of these breaches by Tannenbaum, CW
has incurred and will continue to incur actual losses or damages in an amount no less
than $692,448.32, and has further been caused to incur reasonable and necessary
attorney's fees and court costs.
23. All conditions precedent to CW's right of
recovery
herein have been fully
performed or satisfied.
AS AND FOR A SECOND CAUSE OF ACTION
U_NJUST ENRICHMENT
24. CW incorporates and re-alleges each and every
allegation set forth above
in paragraphs 1-23 as though set forth herein.
fully
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25. Under the Agreements, CW advanced monies to Tannenbaum in excess of
$692,448.32. CW had an expectation and understanding that no less than $692,448.32 in
principal would be repaid Tanneñbaum upon the termination of his engagement
by
with CW.
26. Tardienbaum received the benefit of the monies advanced by CW without
payment or consideration apart from a promise to repay those funds upon his
any
termination.
27. Despite Tannenbaum's obligation to do so, he has failed to remit certain of
the monies due and under the Agreements.
owing
28. Under the circumstances, it would be unjust for Tannenbaum to retain the
benefit of the monies advanced by CW without repaying the amounts owed, thereby
unjustly enriching
Tannêñbaum at the expense of CW. Indeed, itis against equity and
good conscience to permit Tannenbaum to retain moneys owed to CW.
29. As a direct and proximate result of the wrongful conduct of Tannenbaum,
CW has incurred and will continue to incur actual losses or damages, and has further
been caused to incur reasonable and necessary attorney's fees and court costs.
WHEREFORE, Plaintiff CUSHMAN & WAKEFIELD, INC. demands judgment
against Tannenbaum for the following:
a. an award of $692,448.32, which is the amount due and owing by
Tannenbaum under the Agreements;
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attorneys'
b. an award of all reasonable fees and court costs incurred in
connection with collection of the indebtedness or enforcement of
Cushman & Wakefield, Inc.'s rights with respect to the Agreements;
c. an award of prejudgment and post-judgment interest as allowed law;
by
and
d. an award for such other and further relief as the Court shall deem
equitable and just under the circumstances.
Dated: New York, New York
January 24, 2018
LEWIS BRISBOIS BISGAARD & SMITH LLP
By:
Ka L. Campbell, Esq.
Jona n L. Berkowitz, Esq.
Attorneys for Plaintiff,
Cushman & Wakef leld, Inc.
77 Water 21a Floor
Street,
New York, NY 10005
Tel.: (212) 232-1300
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EXHIBIT 1
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SEC1TON 3508 BROKER-SALESPERSON AGREEMENT
THIS
WAKEMEI.D,
AGRREMENT
INC.
made as
an
ofthis
ofBce
1
at 51
day
West
of Febgtary,
52zd
2009
New
between
York, New
CUSHMAN
York
&
and
("C&W") having Street,
Lawrence Tannenbaum, at 300 East 746 Apt. New New York 10021
residing Street, 22G, York,
(''Section3508 Broker").
WEEREAS, C&W is engaged in the general real estate services business and C&W engages
real estatebrokers to conduct part of that business, whether pursuant to this Section 3508 Broker
Agreement or pursuant to other contracts, and
WHERRAS, the Section 3508 Broker represents and warrants to C&W that he/she is a duly
licensed real estate agent in compliance with allstate, and local rules and regulations, and
county
WHEREAS, the Section3508 Broker wishes to become engaged by C&W and C&W iswilling
to engage the services of the Section3508 Broker on the tenna and carations hereinafter setforth
Now THBREFOR11, in consideration Of the above recitah, and C&W being willing to engage
Section 3508 Broker and Section 3508 Broker being willing to be engaged by C&W, on the tenna,
covenants and caretians set forth herein, and C&W and Section 3308 Broker mutually agree as
follows:
1. C&W hereby engages Section 3508 Broker as a real estate broker/salesperson and
Section 3508 Broker accepts such engagem•at C&W shall furnish Section 3508 Broker with oface
space, desk, telephone, stationary, business cards, secretmial service and such other support
services as C&W deems appropriate to facilitate·thetransaction of C&W's real estate business by
Section 3508 Broker. C&W shall furnish Section 3508 Baker with such advice, information and
assistance as C&W deems necessary with aspect to Section 3508 Broker's assigned ·activities.
C&W shall provide Sectiorf 3508 Broker with the standant C&W fringe benefits generally
extended to other C&W Section 3508 brokers of like status and responalbility and in accordance
with C&W's policy as may be determined from time to time during the term of this Agreement.
C&W shallhave the right, at any time, in itssole dih to amend or modify such standard
fringe benefits giving prior written notice of such amendment or modification to
policy by any
Section 3508 Broker. C&W shan sport such fringe benefits as a taxable benefit.on Section 3508
Broker's annual Form-1099. C&W wfIl not at any time treat the Section 3508 Broker as an
employee for Pederal or State tax purposes but rather as a non-employee (independent
statutory
contractor) and as such, no income tax wiedagdiags willbe made by C&W from coinpensation it
pays to the Section 3508 Broker and he/she shall receive a Form-1099 following the close of each
year he/she is engaged hereunder, not Form W-2. Therefome, Section 3508 Broker agrees that
he/she shall be solely responsible for complying with the tax and reporting requirements of, and
making his own personal tax f0ings and payments to, the appzopziate
quarterly taxing
authorities,
1 Section 3508 Droker shal1faithfully devote his fuH business time and best effortsto aid
and assist C&W in the transaction of C&W's business. At alltimes, Section 3508 Broker shall
conduct his activities and regulate his habits in a manner so as to maintain and promote the
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business and reputaffon of C&W. C&W shaH have the right to direct Section3508 Broker with
respect to the methods, techniques and procedures wmmad Sec6on 3508 Broker in the
by
performance of his services in order to assure that the good will and reputation of C&W are not
diudulshed or impaired. Section 3508 Broker shall not collect or receive any monies or-other
consideration for any real estate related business undertaken or services rendered other than in
the name of, on behalf of, and as a Section 9508 broker of C&W. During the tenn of this
Agreement Section 3508 Broker shall not, without the prior written consent of C&W, buy, sell,
lease, invest take an option or otherwise directlyor indirectly partEdipate or deal in real property
for his own account, except with respect to his personal residence and/or vacation home, nor
shall Section 3508 Broker act as a principal, whether disclosed or undisclosed, in connection with
any transaction involving real property or in any other thmsaction which may involve C&W in an
actual or potential conflict ofinterest.
3. C&W shall pay Section 3508 Broker and Section 3508 Broker accepts as his fulland
compensation for all services rendered, the percentages of the canunissions and fees
only
collected by C&W on transactions in which Section 3508 Broker has rendered services, under the
circumstances and as determined in accordance with the Schedule of Compensation armexed
hereto and made part hemof. C&W shall have the right to set-off or recoup from Section 3508
Broker's compensatioat any monies due C&W from Section 3508 Broker pursuant to this
Agreement or pursuant to any arrangement between C&W and Section 3508 Broker for advances,
loans or draws against commissions and fees. C&W shall have the right to withhold fem Section
3506 Broker's compensation, an amount deemed adelmt by CA·W, if any claim be made or
threatened by or against C&W with respect to any commission or fee collected, including the
internal allocation of same, or if commission or fee be subject to any contingency requiring
any
the return of same. C&W shall have the right, at any time, in.its sole discretkm to amend or
the terms and percentages of commissions and fees on future transactions, le,,
modify
transactions not con'summated, as that term isdefined in Paragraph 9(b) of thisAgreement, as of
the effective date of the amendment or modification, giving one week's prior written notice of
by
such amendinent or modification to Section 3508 Baken It is understood that any such
any
amendment or modification of the Schedule of Compensation shall not bemade with respect to
Section 3508 Broker only, but shall be made only pursuant to a general corporate policy, Section
3508 Broker shall not assign, pledge or hypothecate an.y commission, fee or part thereof.
C&W shall make available to Section 3508 Broker a statmaw forth in
AnnuaUy, setting
reasonable detail the commissions and fees payable and to become payable to C&W asa result of
consummated transactions in which Secdon3508 Broker has participated.
. 4. Section 3508 Broker shall observe and comply with the mal estate laws,
faithfully
rules and regulations of the states and localities in which Section 3508 Baker is officed and
licensed and with the code of ethfes,by-laws, rules and regulations of the local realestate board,
and with the written policies, rules, regulations and office procedures of C&W as presently
constituted or as be hereafter supplemented, amended or modified C&W. The written
may by
policies, rules, regulations and office procedures of C&W are hereby ktcorporated in this
Agreement and made part hereof and any cliange in'same may be adopted by C&W in its sole
discretion, without consultation with Section 3508 Broker, and shall be effective and constitute an
amendmmt and modification of this Agreement upon receipt by Section 3508 Broker of a copy
thereof.
2
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5. Engagenient under this Agreement shan commence as of _, 2009
February
("Commencement Date"), and shall continue in effect for five (5) years thereafter ("Expiration
Date") unless terzninated either givingfourfeen (14) days prior writtennotice to the other
by party
of the election to so terminate. C&W shaR have the right to testinate Section 3508 Broker's
engagement immediately by written notice to Section 3508 Broker where such temunation is for
cause, including without limitation, for Section 3508 Broker's dishonesty, fraud, or
misrepresentation to C&W or third unauthorized investment- in real
any persorn estate;
self-dealing; unauthrivad disclosure of confidential infannation; or refusal or failute to comply
with the terms of thfs Agrmmat, or the policies, rules or regulations of C&W.
6. (a) Section 3508 Baker shall have no right or authority fo obligåte C&W, by
agreement, repreamtation or otherwise to any contract or commitmat of whatever Idnd,
including, without lhnitation, to purchase m clalaor retain services or to fixthe rate,amrnme,
manner of payment or division of commissions and fees,without fiistobtaining the prior writtm
approval of C&W.
(b) Section 3508 Broker shan use only realestate forms approved by C&W. Section
3508 Broker shall
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FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 10/04/2018 EXHIBIT A FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 INDEX NO. 650383/2018 NYSCEF [FILED DOC. : NEWNO. YORK 36 COUNTY CLERK 01/2 4/2018 05: 4 2 F13 RECEIVED NYSCEF: 10/04/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/24/2018 SUPREME COURT OF THE STATE OF NEW YORK SUMMONS COUNTY OF NEW YORK Plaintiff designates : NEW YORK County as the CUSHMAN & WAKEFIELD, INC., : place of trial. The basis of the venue is Plaintiff, Plaintiff's place of business. v. : Plaintiff's Place of Business: : 1290 Avenue of the LAWRENCE TANNENBAUM, : Americas New York, New York Defendant. : 10104 To the above named Defendant: You are summoned to answer the complaint in this action, and to serve a hereby of your answer, or if the complaint is not served with this summons, to serve a copy notice of appearance on the plaintiff's attorney(s) within days after the service of twenty this summons exclusive of the day of service, where service is made by delivery upon you within the state, or within 30 days after completion of service where personally service is made in other manner. In case of your failure to appear or answer, any judgment will be taken against you default for the relief demanded in the complaint. by Dated: New York, New York January 24, 2018 Yours, By: Jonath . Ber owitz Lewis B bois Bisgaard & Smith, LLP 77 Water Street, 21*Floor New York, New York 10005 (212) 232-1300 TO: Lawrence Tannenbaum East 746 Apt. 22G 300 Street, New York, New York 10021 4846-817/-3914.1 1 of 25 FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 FlLED NYSCEF NYSCEF DOC. : DOC. NEW NO. NO. YORK 36 1 COUNTY CLERK 01/24 /2018 05 : 42 W IN RECEIVED RECEIVED DEX NO . 65 03 83 / 2018 NYSCEF: NYSCEF: 10/04/2018 01/24/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CUSHMAN & WAKEFIELD, INC., : INDEX NO.: : Plaintiff, : v. : COMPLAINT : LAWRENCE TANNENBAUM, : Defendant. : Plaintiff, CUSHMAN & WAKEFIELD, INC. ("CW"), by and through Lewis Brisbois Bisgaard & Smith, LLP, its attorneys in the above-captioned action, files this Complaint against Defendant, Lawrence Tannenbaum ("Tannenbaum"), and alleges as follows, upon information and belief: PRELIMINARY STATEMENT 1. In February 2009, Tannenbaum was engaged by CW as a real estate broker based in New York. 2. his engagement as a mal estate broker with CW, Tannenbaum During received numerous advances from CW in a total amount in excess of $692,448.32, which he agreed to repay to CW in the event his engagement as a broker for CW terminated. 3. On or about 26, 2012, Tannenbaum's engagement as a real estate January broker with CW terminated, at which point all outstanding advances made to Tannenbaum became due and owing to CW. -1- 4822-16113-7274.1 2 of 25 FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 NEW YORK INDEX NO. 650383/2018 [FILED NYSCEF : DOC. NO. 36 COUNTY CLERK 01/2 4/2018 05 : 42 _Ptd RECEIVED NYSCEF: 10/04/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/24/2018 4. To date, Tannenbaum has failed to repay at least $692,448.32 advanced to him during his engagement with CW. Tannenbaum has breached agreements and duties owed to CW by, in part, failing to repay the monies due to CW. CW now seeks to recover all damages caused Tannenbaum's wrongful conduct. by PARTIES 5. That at the time of the commencement of this action, Plaintiff CW is a domestic business corporation, duly organized, authorized to transact business, and existing under and by virtue of the laws of the State of New York. 6. That at the time of the commencement of this action, Plaintiff CW maintains its principal place of business at 1290 Avenue of the Americas, New York, New York 10104. 7. Tannenbaum is an individual who, upon information and belief, resides in New York and has a last known address at 300 East 74 Street, Apt. 22G, New County York, New York 10021. FACTUAL BACKGROUND 8. On or about 9, 2009, Tannenbaum entered into a Section 3508 February Agreement with CW.1 That same Tannenbaum and CW Broker-Salesperson day, Broker-Salesperson Agreement ("Rider").2 Pursuant executed a Rider to Section 3508 to .. _ -- 1 Exhibit 1. 2 Exhibit 2. -2- 4822-1663-7274.1 3 of 25 FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 INDEX NO. 650383/2018 [FI_LED NYSCEF : DOC. NEW NO. YORK 36 COUNTY CLERK 01/2 4/ 2018 105 i 12 PM) RECEIVED NYSCEF: 10/04/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/24/2018 the Section 3508 Broker-Salesperson Agreement and the Rider, Tannenbaum agreed to serve as a real estate broker based in CW's New York Midtown office. 9. On or about February 9, 2009, Taññenbaum executed a Drawing Account Rider which states, in part: "[d]uring the period from February 9, 2009 to 8, February 2012, [CW] shall: (1) provide you with a guaranteed draw at the rate of $35,000 per annum, payable in equal installments of $1,458.33 (less withholdings, if semi-monthly appropriate) (the "Guaranteed Draw") and (2) make advances to you of (i)during the period from 2009 to payable in equal semi- February 9, February 8, 2010, $465,000, instanments of $19,375 (less withholdings, if appropriate), (ii) during the monthly period from 2010 to payable in equal semi- February 9, February 8, 2011, $365,000, installments of $15,208.33 (less withholdings, if appropriate), (iii) during the monthly 2011 to payable in equal semi- period from February 9, February 8, 2012, $265,000, installments of $11,041.67 (less withholdings, ifappropriate), ((i), (ii)and (iii) monthly Draw" collectively, the "Recourse ("Guarañteed and the "Recourse Draw". Draw") "Draw")."3 collectively the 10, The Drawing Account Rider further states "AMOUNTS ADVANCED TO [TANNENBAUM] AS RECOURSE DRAW PAYMENTS ARE LOANS TO BE REPAID UPON DEMAND."4 the Account Rider provides TO [CW) Additionally, Drawing that, "[i]f [Tannenbaum] fail[s] to repay [CW] the Recourse Draw as provided herein and 3 Exhibit 3. * Exhibit 3. 4822-1663-7274.1 -3- 4 of 25 FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 IN DEX NO. 650383/2018 []['ILED NYSCEF : DOC.NEWNO. YORK 36 COUNTY CLERK 01/ 2 4 / 2018 05 : ÏÈ PN| RECEIVED NYSCEF: 10/04/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/24/2018 [CW] refers the collection of the unpaid amounts to legal counsel, [Tannenbaum] shall attorneys' incurred."5 reimburse [CW] for all reasonable costs and fees thereby 11. On or about February 9, 2009, Tannenbaum executed a note promissory which states, in part: "I, Lawrence Tannenbaum, promise to to the order of [CW], pay upon termination of my engagement with [CW] the sum of $1,095,000.00 or so much thereof as be advanced to me and remain hereunder."6 'I'he may outstanding promissory note also states that Tannenbaum "waive[s] demand, presentment, notice of protest" non-payment and and that he "agree[s] to pay all costs incurred by [CW] in attorneys' amounts due hereunder, including reasonable fees and court costs, collecting amount" together with interest on the unpaid principal and "reaffirm[s] [his] promise to pay all outstanding amounts owed pursuant to any other promissory note(s) [he has] issued [CW]."7 to 12. Subsequently, on or about January 16, 2011, Tannenbaum executed an amendment that, other things, modified the terms of Taññeñbaum's Guaranteed among Draw.8 13. The Section 3508 Broker Agreement, Rider, Drawing Account Rider, note, and amendments thereto, are collectively referred to as the promissory any "Agreements." 5 Exhibit 3. 5 Exhibit 4. 7 Exhibit 4. 8 Exhibit 5, 4- 4822-1663-7274.1 5 of 25 FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 INDEX NO. 650383/2018 NYSCEF [FILED DOC. : NEWNO. YORK 36 COUNTY CLERK 01/24 /2018 05 : 42 PM) RECEIVED NYSCEF: 10/04/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/24/2018 14. During his engagement with CW as a real estate broker, Tannenbaum received his draw paid in semi-monthly installments under the Agreements, which he promised to repay upon termination of his engagement. 15. Taññêñbaum's engagement with CW ended on or about January 26, 2012, 16. Taññêñbaum owes CW $692,448.32 as a principal obligation under the Agreements. That balance, together with interest that has accrued (and continues to in accordance with the terms of the Agreements, remains due and owing. accrue) 17. CW has complied with all terms of the Agreements, and now demands that Tannenbaum make payment in full of all obligations and monies due CW pursuant to the terms of the Agreements. 4822-1663-7274,1 -5- 6 of 25 FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 INDEX NO. 650383/2018 [FILED NYSCEF : DOC. NEW NO. YORK 36 COUNTY CLERK 01/2 4 /2018 05 : 42 PE RECEIVED NYSCEF: 10/04/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/24/2018 AS AND FOR A FIRST CAUSE OF ACTION BREACH OF CONTRACT 18. CW incorporates and re-alleges each and every allegation set forth above in paragraphs 1-17 as though fully set forth herein. 19. CW and Tannenbaum entered into the Agreements, which are valid and enforceable contracts that contain certain terms. 20. CW fully natisfied and performed its duties and obligations pursuant to the Agreements. 21. Tannenbaum failed to perform pursuant to the terms of the Agreements to make payments on monies owed by Tannenbaum to CW, thereby by failing timely his duties and obligations under those contracts. breaching 22. As a direct and proximate result of these breaches by Tannenbaum, CW has incurred and will continue to incur actual losses or damages in an amount no less than $692,448.32, and has further been caused to incur reasonable and necessary attorney's fees and court costs. 23. All conditions precedent to CW's right of recovery herein have been fully performed or satisfied. AS AND FOR A SECOND CAUSE OF ACTION U_NJUST ENRICHMENT 24. CW incorporates and re-alleges each and every allegation set forth above in paragraphs 1-23 as though set forth herein. fully -6- 4822-1663-7274.1 7 of 25 FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 INDEX NO . 6 5 03 8 3 / 2 01 8 [FILED NYSCEF : DOC. NEW NO. YORK 36 COUNTY CLERK 01/24 /2018 05 : 42 PN] RECEIVED NYSCEF: 10/04/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/24/2018 25. Under the Agreements, CW advanced monies to Tannenbaum in excess of $692,448.32. CW had an expectation and understanding that no less than $692,448.32 in principal would be repaid Tanneñbaum upon the termination of his engagement by with CW. 26. Tardienbaum received the benefit of the monies advanced by CW without payment or consideration apart from a promise to repay those funds upon his any termination. 27. Despite Tannenbaum's obligation to do so, he has failed to remit certain of the monies due and under the Agreements. owing 28. Under the circumstances, it would be unjust for Tannenbaum to retain the benefit of the monies advanced by CW without repaying the amounts owed, thereby unjustly enriching Tannêñbaum at the expense of CW. Indeed, itis against equity and good conscience to permit Tannenbaum to retain moneys owed to CW. 29. As a direct and proximate result of the wrongful conduct of Tannenbaum, CW has incurred and will continue to incur actual losses or damages, and has further been caused to incur reasonable and necessary attorney's fees and court costs. WHEREFORE, Plaintiff CUSHMAN & WAKEFIELD, INC. demands judgment against Tannenbaum for the following: a. an award of $692,448.32, which is the amount due and owing by Tannenbaum under the Agreements; 4822-1663-7274.1 -7- 8 of 25 FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 MED NYSCEF : DOC. NEW NO. YORK 36 COUNTY CLERK 01/24/2018 05 : 42 PÈj INDEX RECEIVED NO. 650383/2018 NYSCEF: 10/04/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/24/2018 attorneys' b. an award of all reasonable fees and court costs incurred in connection with collection of the indebtedness or enforcement of Cushman & Wakefield, Inc.'s rights with respect to the Agreements; c. an award of prejudgment and post-judgment interest as allowed law; by and d. an award for such other and further relief as the Court shall deem equitable and just under the circumstances. Dated: New York, New York January 24, 2018 LEWIS BRISBOIS BISGAARD & SMITH LLP By: Ka L. Campbell, Esq. Jona n L. Berkowitz, Esq. Attorneys for Plaintiff, Cushman & Wakef leld, Inc. 77 Water 21a Floor Street, New York, NY 10005 Tel.: (212) 232-1300 -8- 4822-lfidi3-7274.1 9 of 25 FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 INDEX No. 650383/2018 FILED NYSCEF : DOC. NEW NO. YORK 36 COUNTY CLERK 01 /24/2018 05 : 42 PM RECEIVED NYSCEF: 10/04/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/24/2018 EXHIBIT 1 10 of 25 FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 NEW INDEX NO. 650383/2018 [FILED NYSCEF : DOC. NO. 36ORK Y COUNTY CLERK 01/2 4 /2018 0 5 :4 2 PNU RECEIVED NYSCEF: 10/04/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/24/2018 SEC1TON 3508 BROKER-SALESPERSON AGREEMENT THIS WAKEMEI.D, AGRREMENT INC. made as an ofthis ofBce 1 at 51 day West of Febgtary, 52zd 2009 New between York, New CUSHMAN York & and ("C&W") having Street, Lawrence Tannenbaum, at 300 East 746 Apt. New New York 10021 residing Street, 22G, York, (''Section3508 Broker"). WEEREAS, C&W is engaged in the general real estate services business and C&W engages real estatebrokers to conduct part of that business, whether pursuant to this Section 3508 Broker Agreement or pursuant to other contracts, and WHERRAS, the Section 3508 Broker represents and warrants to C&W that he/she is a duly licensed real estate agent in compliance with allstate, and local rules and regulations, and county WHEREAS, the Section3508 Broker wishes to become engaged by C&W and C&W iswilling to engage the services of the Section3508 Broker on the tenna and carations hereinafter setforth Now THBREFOR11, in consideration Of the above recitah, and C&W being willing to engage Section 3508 Broker and Section 3508 Broker being willing to be engaged by C&W, on the tenna, covenants and caretians set forth herein, and C&W and Section 3308 Broker mutually agree as follows: 1. C&W hereby engages Section 3508 Broker as a real estate broker/salesperson and Section 3508 Broker accepts such engagem•at C&W shall furnish Section 3508 Broker with oface space, desk, telephone, stationary, business cards, secretmial service and such other support services as C&W deems appropriate to facilitate·thetransaction of C&W's real estate business by Section 3508 Broker. C&W shall furnish Section 3508 Baker with such advice, information and assistance as C&W deems necessary with aspect to Section 3508 Broker's assigned ·activities. C&W shall provide Sectiorf 3508 Broker with the standant C&W fringe benefits generally extended to other C&W Section 3508 brokers of like status and responalbility and in accordance with C&W's policy as may be determined from time to time during the term of this Agreement. C&W shallhave the right, at any time, in itssole dih to amend or modify such standard fringe benefits giving prior written notice of such amendment or modification to policy by any Section 3508 Broker. C&W shan sport such fringe benefits as a taxable benefit.on Section 3508 Broker's annual Form-1099. C&W wfIl not at any time treat the Section 3508 Broker as an employee for Pederal or State tax purposes but rather as a non-employee (independent statutory contractor) and as such, no income tax wiedagdiags willbe made by C&W from coinpensation it pays to the Section 3508 Broker and he/she shall receive a Form-1099 following the close of each year he/she is engaged hereunder, not Form W-2. Therefome, Section 3508 Broker agrees that he/she shall be solely responsible for complying with the tax and reporting requirements of, and making his own personal tax f0ings and payments to, the appzopziate quarterly taxing authorities, 1 Section 3508 Droker shal1faithfully devote his fuH business time and best effortsto aid and assist C&W in the transaction of C&W's business. At alltimes, Section 3508 Broker shall conduct his activities and regulate his habits in a manner so as to maintain and promote the 11 of 25 FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 B'ILED NYSCEF : DOC. NEW NO. YORK 36 COUNTY CLERK 01/ 2 4 / 2 018 0 5 : 42 W INDEX RECEIVED NO. 650383/2018 NYSCEF: 10/04/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/24/2018 business and reputaffon of C&W. C&W shaH have the right to direct Section3508 Broker with respect to the methods, techniques and procedures wmmad Sec6on 3508 Broker in the by performance of his services in order to assure that the good will and reputation of C&W are not diudulshed or impaired. Section 3508 Broker shall not collect or receive any monies or-other consideration for any real estate related business undertaken or services rendered other than in the name of, on behalf of, and as a Section 9508 broker of C&W. During the tenn of this Agreement Section 3508 Broker shall not, without the prior written consent of C&W, buy, sell, lease, invest take an option or otherwise directlyor indirectly partEdipate or deal in real property for his own account, except with respect to his personal residence and/or vacation home, nor shall Section 3508 Broker act as a principal, whether disclosed or undisclosed, in connection with any transaction involving real property or in any other thmsaction which may involve C&W in an actual or potential conflict ofinterest. 3. C&W shall pay Section 3508 Broker and Section 3508 Broker accepts as his fulland compensation for all services rendered, the percentages of the canunissions and fees only collected by C&W on transactions in which Section 3508 Broker has rendered services, under the circumstances and as determined in accordance with the Schedule of Compensation armexed hereto and made part hemof. C&W shall have the right to set-off or recoup from Section 3508 Broker's compensatioat any monies due C&W from Section 3508 Broker pursuant to this Agreement or pursuant to any arrangement between C&W and Section 3508 Broker for advances, loans or draws against commissions and fees. C&W shall have the right to withhold fem Section 3506 Broker's compensation, an amount deemed adelmt by CA·W, if any claim be made or threatened by or against C&W with respect to any commission or fee collected, including the internal allocation of same, or if commission or fee be subject to any contingency requiring any the return of same. C&W shall have the right, at any time, in.its sole discretkm to amend or the terms and percentages of commissions and fees on future transactions, le,, modify transactions not con'summated, as that term isdefined in Paragraph 9(b) of thisAgreement, as of the effective date of the amendment or modification, giving one week's prior written notice of by such amendinent or modification to Section 3508 Baken It is understood that any such any amendment or modification of the Schedule of Compensation shall not bemade with respect to Section 3508 Broker only, but shall be made only pursuant to a general corporate policy, Section 3508 Broker shall not assign, pledge or hypothecate an.y commission, fee or part thereof. C&W shall make available to Section 3508 Broker a statmaw forth in AnnuaUy, setting reasonable detail the commissions and fees payable and to become payable to C&W asa result of consummated transactions in which Secdon3508 Broker has participated. . 4. Section 3508 Broker shall observe and comply with the mal estate laws, faithfully rules and regulations of the states and localities in which Section 3508 Baker is officed and licensed and with the code of ethfes,by-laws, rules and regulations of the local realestate board, and with the written policies, rules, regulations and office procedures of C&W as presently constituted or as be hereafter supplemented, amended or modified C&W. The written may by policies, rules, regulations and office procedures of C&W are hereby ktcorporated in this Agreement and made part hereof and any cliange in'same may be adopted by C&W in its sole discretion, without consultation with Section 3508 Broker, and shall be effective and constitute an amendmmt and modification of this Agreement upon receipt by Section 3508 Broker of a copy thereof. 2 a-nm.,m.-me.--m...maxx-em- =m.. 12 of 25 FILED: NEW YORK COUNTY CLERK 10/04/2018 04:56 PM INDEX NO. 650383/2018 |FILED : NEW YORK COUNTY CLERK gl INDEX NO. 650383/2018 NYSCEF DOC. NO. 36 / 24¯/2018 0 5 :4 2 P1 RECEIVED NYSCEF: 10/04/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/24/2018 5. Engagenient under this Agreement shan commence as of _, 2009 February ("Commencement Date"), and shall continue in effect for five (5) years thereafter ("Expiration Date") unless terzninated either givingfourfeen (14) days prior writtennotice to the other by party of the election to so terminate. C&W shaR have the right to testinate Section 3508 Broker's engagement immediately by written notice to Section 3508 Broker where such temunation is for cause, including without limitation, for Section 3508 Broker's dishonesty, fraud, or misrepresentation to C&W or third unauthorized investment- in real any persorn estate; self-dealing; unauthrivad disclosure of confidential infannation; or refusal or failute to comply with the terms of thfs Agrmmat, or the policies, rules or regulations of C&W. 6. (a) Section 3508 Baker shall have no right or authority fo obligåte C&W, by agreement, repreamtation or otherwise to any contract or commitmat of whatever Idnd, including, without lhnitation, to purchase m clalaor retain services or to fixthe rate,amrnme, manner of payment or division of commissions and fees,without fiistobtaining the prior writtm approval of C&W. (b) Section 3508 Broker shan use only realestate forms approved by C&W. Section 3508 Broker shall