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FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021
SUPREME COURT OF THE STATE OF NEW YORK
KINGS COUNTY
WYNNMED INC.,
Plaintiff, Index No.: 507140/2021
-against-
FIRST AMENDED
DRE HEALTH CORPORATION, COMPLAINT
Defendant.
Plaintiff WynnMed Inc. (“WynnMed,” or “Plaintiff”), by and through its undersigned
counsel, Venable LLP, as and for its First Amended Complaint against defendant DRE Health
Corporation (“DRE,” or “Defendant”), alleges as follows:
1. This is an action for breach of contract, unjust enrichment and fraudulent
misrepresentation. DRE delivered personal protective equipment (“PPE”) to WynnMed months
late and riddled with contamination and manufacturing defects, causing WynnMed to suffer
considerable losses and undertake an expensive and time-consuming quality control audit of its
inventory. DRE refuses to reimburse WynnMed for these losses, or in the alternative to provide
WynnMed with conforming goods. DRE has no justification for refusing to compensate
WynnMed for DRE’s failings and has left WynnMed with no choice but to file this lawsuit.
THE PARTIES
2. Plaintiff WynnMed is a corporation organized and existing under the laws of the
State of New York with its principal place of business at 240 52nd Street, Brooklyn, New York
11220.
3. Upon information and belief, defendant DRE is a corporation organized and
existing under the laws of the State of Missouri, with its principal place of business at 1301 Oak
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Street, Suite 210, Kansas City, Missouri 64106.
JURISDICTION AND VENUE
4. This Court has subject matter jurisdiction over this action pursuant to Section 301
of the New York Civil Practice Law and Rules (“CPLR”).
5. This Court has personal jurisdiction over defendant DRE because, among other
things: (a) DRE transacted business within the State of New York with WynnMed, a New York
corporation, to sell goods to WynnMed; and (b) DRE committed tortious acts without the state,
causing injury to WynnMed within the State of New York, and upon information and belief,
DRE does and solicits business, engages in other persistent courses of conduct, and derives
substantial revenue from goods and services provided in the State of New York, and WynnMed’s
causes of action alleged in this First Amended Complaint arose from these acts.
6. Venue is proper in this County pursuant to CPLR 503(a) in that WynnMed’s
principal office is located in Kings County, and a substantial part of the events giving rise to the
claim occurred in Kings County.
FACTS
7. WynnMed is a medical supply company. Among other things, WynnMed
purchases PPE, such as face masks and vinyl gloves, in mass quantities from third party
wholesalers, and then resells the PPE to hospitals, clinics and other customers. PPE is a crucial
element of the fight against the spread of COVID-19 in the United States and around the world,
and time is of the essence in supplying it.
8. On or about January 21, 2021, WynnMed entered into an agreement with DRE for
the purchase of over 200 million vinyl gloves for immediate delivery by sea to WynnMed at the
Ports of Los Angeles and Long Beach, California (the “Agreement”). A true and correct copy of
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the Agreement is attached hereto as Exhibit A. A true and correct copy of the purchase order
issued by WynnMed is attached hereto as Exhibit B.
9. The terms of the Agreement were that WynnMed would purchase 60 shipping
containers of vinyl gloves from DRE. Each shipping container would contain 3,600 cases of
vinyl gloves, and each case would contain 1,000 gloves. WynnMed agreed to buy, and DRE
agreed to sell, the 60 shipping containers of vinyl gloves at a price of $56.77 per case, for a total
contract value of $12,262,320.00. The payment terms were that WynnMed would immediately
pay a 30% deposit for all 60 containers ($3,678,696.00), another 60% of the purchase price when
DRE provided WynnMed with the container number of a container, and the remaining 10% on
delivery of the product to WynnMed at its warehouse. Time being of the essence, in the
Agreement DRE provided a delivery schedule (as shown below) whereby DRE “CONFIRMED”
that all of the containers would arrive in the United States by February 28, 2021.
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10. At that time (January of 2021) $56.77 per case was the approximate wholesale
market value of vinyl gloves for immediate delivery to the United States.
11. At first, DRE performed under the Agreement. Between on or about January 31,
2021, and on or about February 23, 2021, the first 21 of the 60 containers arrived in the Ports of
Los Angeles and Long Beach, California. For these 21 containers, shortly after each container’s
arrival, DRE coordinated a telex notice to All-Ways, Inc. (“All-Ways”), the logistics company
arranging the transportation of the containers, informing All-Ways that the containers could be
released to WynnMed, and All-Ways promptly did so.
12. On or about February 16, 2021, All-Ways informed WynnMed that several of the
container shipments were delayed. The next eight containers arrived at the Ports of Los Angeles
and Long Beach, California from on or about February 28, 2021, to on or about March 8, 2021.
As with the first 21 containers, shortly after each container’s arrival, DRE coordinated telex
notice to All-Ways that the containers could be released to WynnMed, and All-Ways promptly
did so.
13. By on or about February 22, 2021, DRE had provided WynnMed with the
container numbers of all 60 containers.
14. By on or about March 1, 2021, WynnMed had made payment to DRE of
$11,465.269.00, representing a 30% deposit, and a 60% partial payment (due when the container
number was provided) for all 60 containers of vinyl gloves WynnMed agreed to buy (as well as
the 10% due on delivery for some of the containers), even though as of March 1, 2021,
WynnMed had only received 21 containers.
15. Upon information and belief, the missing 31 containers arrived at the Ports of Los
Angeles and Long Beach, California between on or about March 10, 2021, and on or about
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March 15, 2021. Upon information and belief, All-Ways did not immediately release those 31
containers to WynnMed because DRE had not provided All-Ways with telex notice that the
containers could be released.
16. Upon information and belief, DRE was unable to provide All-Ways with telex
notice that those 31 containers could be released to WynnMed, because DRE no longer had the
$11,608,329.40 WynnMed paid to DRE, and did not have sufficient funds to pay the
manufacturers, in whole or in part, for the vinyl gloves WynnMed purchased from DRE.
17. On or about March 25, 2021, All-Ways notified WynnMed that All-Ways would
release the remaining 31 containers to WynnMed. WynnMed received the remaining 31
containers between on or about March 26, 2021 and on or about April 6, 2021, from 26 to 37
days late.
18. Beginning on or about April 22, 2021, WynnMed noticed serious contamination
issues and manufacturing defects with the vinyl gloves it had received from DRE. These issues
include, among other things: gloves contaminated with dead rodents and droppings; gloves
containing insect eggs and larva; gloves covered in a greasy material; and gloves missing thumbs
or fingers.
19. The photographs below all show vinyl gloves that Wynn-Med received from
DRE. In the first photograph, the gloves are smeared with a dark brown contaminant:
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This photograph shows a dead mouse fetus that was found inside a glove:
These gloves show evidence of contamination with dirt or grease:
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These gloves contain insect eggs and larva:
20. These contaminated and defective gloves are unfit for sale and must be discarded.
In all, as of the date of this First Amended Complaint, Wynn-Med has discovered approximately
670 cases of contaminated and defective gloves.
21. None of the alleged contamination occurred while the gloves were in the
possession, custody and/or control of Wynn-Med. Wynn-Med knows this, because, among other
things, WynnMed discovered the contaminated gloves inside wrapped pallets and unopened
boxes of vinyl gloves. Wynn-Med has also never experienced contamination issues like these
with any prior shipments of gloves it has received and resold.
22. With respect to the manufacturing defects, Wynn-Med has no oversight or control
of the manufacturing process and all such defects occurred before the vinyl gloves were in
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Wynn-Med’s possession, custody and/or control. Upon information and belief, such defects
were caused by improper maintenance and/or operation of manufacturing equipment under the
supervision and/or control of DRE, as well as the lack of an adequate quality assurance process.
Upon information and belief, poor maintenance of manufacturing machinery resulted in
splattering oil, rodent and insect infestation, and the embedment of foreign materials in the
gloves during the manufacturing process.
23. In addition, WynnMed purchased 10 containers of vinyl gloves that DRE
represented were manufactured by Hongray USA (“Hongray”), a reputable disposable protective
glove manufacturer. On or about January 22, 2021, Wynn-Med received what DRE represented
to be Hongray gloves, and immediately discovered that they were mis-sized and had other
quality issues.
24. Wynn-Med contacted Hongray to complain about these gloves. Hongray
confirmed that it had not manufactured the gloves in question, and that they were counterfeits.
Wynn-Med had no choice but to dispose of over 4,000 cases of gloves, for which it had paid
DRE $65.00 per case.
25. WynnMed has suffered significant damages as a result of DRE’s actions. In the
first place, WynnMed paid DRE for vinyl gloves that are contaminated, defective, counterfeit
and otherwise unfit for sale and thus worthless. As a result of DRE’s delivery of contaminated
and defective gloves, WynnMed is undertaking an expensive and time-consuming quality control
audit of the vinyl gloves remaining in its possession that has already cost more than $50,000.
Moreover, 31 containers of vinyl gloves were delivered from 26 to 37 days late, and during that
time Wynn-Med lost over $1,000,000 based on the dramatic decrease in the market price of vinyl
gloves.
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FIRST CAUSE OF ACTION
(Breach of Contract Seeking Rescission
and Monetary Damages in the Alternative)
26. Plaintiff repeats and realleges each and every previous allegation as though fully
set forth herein.
27. To the extent that the Agreement is an enforceable contract, Plaintiff has
complied with and fulfilled all of its obligations under the Agreement.
28. Defendant has materially breached the Agreement by, among other things,
delivering 31 containers of vinyl gloves to Plaintiff from 26 to 37 days late, and delivering
approximately 40 containers of vinyl gloves to Plaintiff that are contaminated, defective, and
unsalable.
29. Defendant’s breaches substantially defeat the purpose of the Agreement and the
object that the parties intended.
30. Plaintiff lacks an adequate remedy at law and the status quo may be substantially
restored by rescinding the Agreement.
31. Plaintiff is entitled to rescission of the Agreement as a result of Defendant’s
material breach, and the return of the millions of dollars that Plaintiff paid to Defendant pursuant
to the Agreement.
32. In the alternative, Defendant’s breaches have caused Plaintiff monetary damages,
including the amounts Plaintiff paid to Defendant for the containers that were late and contained
contaminated, defective and counterfeit vinyl gloves, in addition to the losses caused by the
change in market value of the vinyl gloves Defendant failed to deliver in an acceptable manner,
and other incidental and consequential damages in an amount to be proven at trial, but not less
than $5,000,000.
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SECOND CAUSE OF ACTION
(Unjust Enrichment)
33. Plaintiff repeats and realleges each and every previous allegation as though fully
set forth herein.
34. Defendant delivered thousands of gloves to Plaintiff that are contaminated,
counterfeit and defective, and 31 containers of vinyl gloves were delivered from 26 to 37 days
late. Defendant has nonetheless retained all of the monies Plaintiff paid to Defendant.
35. As a result, Defendant has been enriched, at Plaintiff’s expense, and it is against
equity and good conscience to permit Defendant to retain that enrichment.
36. Plaintiff has been damaged in an amount to be proven at trial, but not less than
$5,000,000 plus interest.
THIRD CAUSE OF ACTION
(Fraudulent Misrepresentation)
37. Plaintiff repeats and realleges each and every previous allegation as though fully
set forth herein.
38. Defendant represented to Plaintiff that: (i) Defendant would deliver 60 containers
of vinyl gloves to Plaintiff by February 28, 2020; and (ii) those gloves would conform to
specifications and be free of contamination and defects.
39. Defendant also represented to Plaintiff that 10 containers of vinyl gloves
Defendant sold to Plaintiff were manufactured by Hongray.
40. Those representations were false. Defendant knew such representations to
Plaintiff were false, or did not know whether such representations were true or false when made.
41. Defendant intended to induce Plaintiff to enter into the Agreement based on those
representations.
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42. Plaintiff acted in reliance on Defendant’s representations when it entered into the
Agreement.
43. As a result of that reliance, Plaintiff suffered damages in an amount to be proven
at trial, but not less than $5,000,000.00 plus interest.
DEMAND FOR RELIEF
WHEREFORE, Plaintiff demands judgment against Defendant as follows (in the alternative):
a. for rescission of the agreement between the parties and return to Plaintiff the
monies paid to Defendant, plus interest;
b. for all monetary damages caused by Defendant’s breach of the parties’
agreement;
c. for restitution under UCC § 2-718 in the amount by which Plaintiff’s payment
exceeded the amount to which Defendant is entitled;
d. for an order under UCC § 2-217 that Plaintiff may deduct all or any part of its
damages from Defendant’s breach of the parties’ agreement from any part of the
amounts still due under the parties’ agreement;
e. for damages for Defendant’s non-delivery under UCC § 2-713, including in the
amount of the difference between the contract price pursuant to the parties’
agreement and the market value of the goods at the time when Plaintiff learned
of Defendant’s breach, together with any incidental and consequential damages;
f. for damages for Defendant’s delivery of non-conforming goods under UCC § 2-
714, including in the amount of the difference between the contract price
pursuant to the parties’ agreement and the market values of the goods delivered
to Plaintiffs, together with any incidental and consequential damages;
g. for interest, costs and attorneys’ fees; and
h. for such other and further relief as the Court deems just and proper.
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Dated: New York, New York
May 5, 2021
VENABLE LLP
By: /s/ Jessie F. Beeber
Jessie F. Beeber
Patrick J. Boyle
Jess K. Coleman
jbeeber@venable.com
pboyle@venable.com
jcoleman@venable.com
1270 Avenue of the Americas, 24th Floor
New York, New York 10104
Tel: (212) 307-5500
Attorneys for Plaintiff WynnMed Inc.
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Preview
FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021 SUPREME COURT OF THE STATE OF NEW YORK KINGS COUNTY WYNNMED INC., Plaintiff, Index No.: 507140/2021 -against- FIRST AMENDED DRE HEALTH CORPORATION, COMPLAINT Defendant. Plaintiff WynnMed Inc. (“WynnMed,” or “Plaintiff”), by and through its undersigned counsel, Venable LLP, as and for its First Amended Complaint against defendant DRE Health Corporation (“DRE,” or “Defendant”), alleges as follows: 1. This is an action for breach of contract, unjust enrichment and fraudulent misrepresentation. DRE delivered personal protective equipment (“PPE”) to WynnMed months late and riddled with contamination and manufacturing defects, causing WynnMed to suffer considerable losses and undertake an expensive and time-consuming quality control audit of its inventory. DRE refuses to reimburse WynnMed for these losses, or in the alternative to provide WynnMed with conforming goods. DRE has no justification for refusing to compensate WynnMed for DRE’s failings and has left WynnMed with no choice but to file this lawsuit. THE PARTIES 2. Plaintiff WynnMed is a corporation organized and existing under the laws of the State of New York with its principal place of business at 240 52nd Street, Brooklyn, New York 11220. 3. Upon information and belief, defendant DRE is a corporation organized and existing under the laws of the State of Missouri, with its principal place of business at 1301 Oak 1 1 of 12 FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021 Street, Suite 210, Kansas City, Missouri 64106. JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction over this action pursuant to Section 301 of the New York Civil Practice Law and Rules (“CPLR”). 5. This Court has personal jurisdiction over defendant DRE because, among other things: (a) DRE transacted business within the State of New York with WynnMed, a New York corporation, to sell goods to WynnMed; and (b) DRE committed tortious acts without the state, causing injury to WynnMed within the State of New York, and upon information and belief, DRE does and solicits business, engages in other persistent courses of conduct, and derives substantial revenue from goods and services provided in the State of New York, and WynnMed’s causes of action alleged in this First Amended Complaint arose from these acts. 6. Venue is proper in this County pursuant to CPLR 503(a) in that WynnMed’s principal office is located in Kings County, and a substantial part of the events giving rise to the claim occurred in Kings County. FACTS 7. WynnMed is a medical supply company. Among other things, WynnMed purchases PPE, such as face masks and vinyl gloves, in mass quantities from third party wholesalers, and then resells the PPE to hospitals, clinics and other customers. PPE is a crucial element of the fight against the spread of COVID-19 in the United States and around the world, and time is of the essence in supplying it. 8. On or about January 21, 2021, WynnMed entered into an agreement with DRE for the purchase of over 200 million vinyl gloves for immediate delivery by sea to WynnMed at the Ports of Los Angeles and Long Beach, California (the “Agreement”). A true and correct copy of 2 2 of 12 FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021 the Agreement is attached hereto as Exhibit A. A true and correct copy of the purchase order issued by WynnMed is attached hereto as Exhibit B. 9. The terms of the Agreement were that WynnMed would purchase 60 shipping containers of vinyl gloves from DRE. Each shipping container would contain 3,600 cases of vinyl gloves, and each case would contain 1,000 gloves. WynnMed agreed to buy, and DRE agreed to sell, the 60 shipping containers of vinyl gloves at a price of $56.77 per case, for a total contract value of $12,262,320.00. The payment terms were that WynnMed would immediately pay a 30% deposit for all 60 containers ($3,678,696.00), another 60% of the purchase price when DRE provided WynnMed with the container number of a container, and the remaining 10% on delivery of the product to WynnMed at its warehouse. Time being of the essence, in the Agreement DRE provided a delivery schedule (as shown below) whereby DRE “CONFIRMED” that all of the containers would arrive in the United States by February 28, 2021. 3 3 of 12 FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021 10. At that time (January of 2021) $56.77 per case was the approximate wholesale market value of vinyl gloves for immediate delivery to the United States. 11. At first, DRE performed under the Agreement. Between on or about January 31, 2021, and on or about February 23, 2021, the first 21 of the 60 containers arrived in the Ports of Los Angeles and Long Beach, California. For these 21 containers, shortly after each container’s arrival, DRE coordinated a telex notice to All-Ways, Inc. (“All-Ways”), the logistics company arranging the transportation of the containers, informing All-Ways that the containers could be released to WynnMed, and All-Ways promptly did so. 12. On or about February 16, 2021, All-Ways informed WynnMed that several of the container shipments were delayed. The next eight containers arrived at the Ports of Los Angeles and Long Beach, California from on or about February 28, 2021, to on or about March 8, 2021. As with the first 21 containers, shortly after each container’s arrival, DRE coordinated telex notice to All-Ways that the containers could be released to WynnMed, and All-Ways promptly did so. 13. By on or about February 22, 2021, DRE had provided WynnMed with the container numbers of all 60 containers. 14. By on or about March 1, 2021, WynnMed had made payment to DRE of $11,465.269.00, representing a 30% deposit, and a 60% partial payment (due when the container number was provided) for all 60 containers of vinyl gloves WynnMed agreed to buy (as well as the 10% due on delivery for some of the containers), even though as of March 1, 2021, WynnMed had only received 21 containers. 15. Upon information and belief, the missing 31 containers arrived at the Ports of Los Angeles and Long Beach, California between on or about March 10, 2021, and on or about 4 4 of 12 FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021 March 15, 2021. Upon information and belief, All-Ways did not immediately release those 31 containers to WynnMed because DRE had not provided All-Ways with telex notice that the containers could be released. 16. Upon information and belief, DRE was unable to provide All-Ways with telex notice that those 31 containers could be released to WynnMed, because DRE no longer had the $11,608,329.40 WynnMed paid to DRE, and did not have sufficient funds to pay the manufacturers, in whole or in part, for the vinyl gloves WynnMed purchased from DRE. 17. On or about March 25, 2021, All-Ways notified WynnMed that All-Ways would release the remaining 31 containers to WynnMed. WynnMed received the remaining 31 containers between on or about March 26, 2021 and on or about April 6, 2021, from 26 to 37 days late. 18. Beginning on or about April 22, 2021, WynnMed noticed serious contamination issues and manufacturing defects with the vinyl gloves it had received from DRE. These issues include, among other things: gloves contaminated with dead rodents and droppings; gloves containing insect eggs and larva; gloves covered in a greasy material; and gloves missing thumbs or fingers. 19. The photographs below all show vinyl gloves that Wynn-Med received from DRE. In the first photograph, the gloves are smeared with a dark brown contaminant: 5 5 of 12 FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021 This photograph shows a dead mouse fetus that was found inside a glove: These gloves show evidence of contamination with dirt or grease: 6 6 of 12 FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021 These gloves contain insect eggs and larva: 20. These contaminated and defective gloves are unfit for sale and must be discarded. In all, as of the date of this First Amended Complaint, Wynn-Med has discovered approximately 670 cases of contaminated and defective gloves. 21. None of the alleged contamination occurred while the gloves were in the possession, custody and/or control of Wynn-Med. Wynn-Med knows this, because, among other things, WynnMed discovered the contaminated gloves inside wrapped pallets and unopened boxes of vinyl gloves. Wynn-Med has also never experienced contamination issues like these with any prior shipments of gloves it has received and resold. 22. With respect to the manufacturing defects, Wynn-Med has no oversight or control of the manufacturing process and all such defects occurred before the vinyl gloves were in 7 7 of 12 FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021 Wynn-Med’s possession, custody and/or control. Upon information and belief, such defects were caused by improper maintenance and/or operation of manufacturing equipment under the supervision and/or control of DRE, as well as the lack of an adequate quality assurance process. Upon information and belief, poor maintenance of manufacturing machinery resulted in splattering oil, rodent and insect infestation, and the embedment of foreign materials in the gloves during the manufacturing process. 23. In addition, WynnMed purchased 10 containers of vinyl gloves that DRE represented were manufactured by Hongray USA (“Hongray”), a reputable disposable protective glove manufacturer. On or about January 22, 2021, Wynn-Med received what DRE represented to be Hongray gloves, and immediately discovered that they were mis-sized and had other quality issues. 24. Wynn-Med contacted Hongray to complain about these gloves. Hongray confirmed that it had not manufactured the gloves in question, and that they were counterfeits. Wynn-Med had no choice but to dispose of over 4,000 cases of gloves, for which it had paid DRE $65.00 per case. 25. WynnMed has suffered significant damages as a result of DRE’s actions. In the first place, WynnMed paid DRE for vinyl gloves that are contaminated, defective, counterfeit and otherwise unfit for sale and thus worthless. As a result of DRE’s delivery of contaminated and defective gloves, WynnMed is undertaking an expensive and time-consuming quality control audit of the vinyl gloves remaining in its possession that has already cost more than $50,000. Moreover, 31 containers of vinyl gloves were delivered from 26 to 37 days late, and during that time Wynn-Med lost over $1,000,000 based on the dramatic decrease in the market price of vinyl gloves. 8 8 of 12 FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021 FIRST CAUSE OF ACTION (Breach of Contract Seeking Rescission and Monetary Damages in the Alternative) 26. Plaintiff repeats and realleges each and every previous allegation as though fully set forth herein. 27. To the extent that the Agreement is an enforceable contract, Plaintiff has complied with and fulfilled all of its obligations under the Agreement. 28. Defendant has materially breached the Agreement by, among other things, delivering 31 containers of vinyl gloves to Plaintiff from 26 to 37 days late, and delivering approximately 40 containers of vinyl gloves to Plaintiff that are contaminated, defective, and unsalable. 29. Defendant’s breaches substantially defeat the purpose of the Agreement and the object that the parties intended. 30. Plaintiff lacks an adequate remedy at law and the status quo may be substantially restored by rescinding the Agreement. 31. Plaintiff is entitled to rescission of the Agreement as a result of Defendant’s material breach, and the return of the millions of dollars that Plaintiff paid to Defendant pursuant to the Agreement. 32. In the alternative, Defendant’s breaches have caused Plaintiff monetary damages, including the amounts Plaintiff paid to Defendant for the containers that were late and contained contaminated, defective and counterfeit vinyl gloves, in addition to the losses caused by the change in market value of the vinyl gloves Defendant failed to deliver in an acceptable manner, and other incidental and consequential damages in an amount to be proven at trial, but not less than $5,000,000. 9 9 of 12 FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021 SECOND CAUSE OF ACTION (Unjust Enrichment) 33. Plaintiff repeats and realleges each and every previous allegation as though fully set forth herein. 34. Defendant delivered thousands of gloves to Plaintiff that are contaminated, counterfeit and defective, and 31 containers of vinyl gloves were delivered from 26 to 37 days late. Defendant has nonetheless retained all of the monies Plaintiff paid to Defendant. 35. As a result, Defendant has been enriched, at Plaintiff’s expense, and it is against equity and good conscience to permit Defendant to retain that enrichment. 36. Plaintiff has been damaged in an amount to be proven at trial, but not less than $5,000,000 plus interest. THIRD CAUSE OF ACTION (Fraudulent Misrepresentation) 37. Plaintiff repeats and realleges each and every previous allegation as though fully set forth herein. 38. Defendant represented to Plaintiff that: (i) Defendant would deliver 60 containers of vinyl gloves to Plaintiff by February 28, 2020; and (ii) those gloves would conform to specifications and be free of contamination and defects. 39. Defendant also represented to Plaintiff that 10 containers of vinyl gloves Defendant sold to Plaintiff were manufactured by Hongray. 40. Those representations were false. Defendant knew such representations to Plaintiff were false, or did not know whether such representations were true or false when made. 41. Defendant intended to induce Plaintiff to enter into the Agreement based on those representations. 10 10 of 12 FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021 42. Plaintiff acted in reliance on Defendant’s representations when it entered into the Agreement. 43. As a result of that reliance, Plaintiff suffered damages in an amount to be proven at trial, but not less than $5,000,000.00 plus interest. DEMAND FOR RELIEF WHEREFORE, Plaintiff demands judgment against Defendant as follows (in the alternative): a. for rescission of the agreement between the parties and return to Plaintiff the monies paid to Defendant, plus interest; b. for all monetary damages caused by Defendant’s breach of the parties’ agreement; c. for restitution under UCC § 2-718 in the amount by which Plaintiff’s payment exceeded the amount to which Defendant is entitled; d. for an order under UCC § 2-217 that Plaintiff may deduct all or any part of its damages from Defendant’s breach of the parties’ agreement from any part of the amounts still due under the parties’ agreement; e. for damages for Defendant’s non-delivery under UCC § 2-713, including in the amount of the difference between the contract price pursuant to the parties’ agreement and the market value of the goods at the time when Plaintiff learned of Defendant’s breach, together with any incidental and consequential damages; f. for damages for Defendant’s delivery of non-conforming goods under UCC § 2- 714, including in the amount of the difference between the contract price pursuant to the parties’ agreement and the market values of the goods delivered to Plaintiffs, together with any incidental and consequential damages; g. for interest, costs and attorneys’ fees; and h. for such other and further relief as the Court deems just and proper. 11 11 of 12 FILED: KINGS COUNTY CLERK 05/05/2021 03:53 PM INDEX NO. 507140/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/05/2021 Dated: New York, New York May 5, 2021 VENABLE LLP By: /s/ Jessie F. Beeber Jessie F. Beeber Patrick J. Boyle Jess K. Coleman jbeeber@venable.com pboyle@venable.com jcoleman@venable.com 1270 Avenue of the Americas, 24th Floor New York, New York 10104 Tel: (212) 307-5500 Attorneys for Plaintiff WynnMed Inc. 12 12 of 12