Preview
FILED: QUEENS COUNTY CLERK 07/27/2022 05:46 PM INDEX NO. 711145/2022
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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ARCADIO ROSELLI, as a holder of thirty-three and Index No.: 711145/2022
one-third percent (33 1/3 %) of the outstanding shares of
stock of G. Rose Associates, LLC, suing derivatively on Motion Seq. No. 2
behalf G. ROSE ASSOCIATES, LLC,
AFFIRMATION OF
Plaintiff, ISRAEL KLEIN, ESQ., IN
SUPPORT OF
-against- PLAINTIFF’S MOTION
TO DISMISS PURSUANT
A3T21, LLC, d/b/a ANTONIO’S KITCHEN, TO C.P.L.R. §§ 3211(a)(3)
THOMAS GAMBINO and ANTHONY ROSELLI, AND 3211(a)(4)
Defendants.
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Israel Klein, Esq., an attorney duly admitted to practice law before the courts of the State
of New York and before this Court, as an attorney for the Plaintiff Arcadio Roselli (“Plaintiff”)
herein, declares the following to be true under penalty of perjury upon information and belief.
1. I am an associate of the law firm Pardalis & Nohavicka, LLP, counsel for the
Plaintiff in the above-captioned matter. I am fully familiar with the facts and circumstances
concerning this action and submit this Affirmation in support of Plaintiff’s motion, pursuant to
C.P.L.R. §§ 3211(a)(3) and 3211(a)(4), to dismiss Defendants A3T21, LLC, d/b/a Antonio’s
Kitchen’s (“Antonio’s Kitchen”) and Anthony Roselli’s (“Anthony”) (collectively,
“Defendants”) Counterclaims 1-5 filed against Plaintiff as they relate to any allegations of
diversion or mismanagement of funds or assets or an accounting of G. Rose Associates, LLC
(“G. Rose”), iWash Sip and Surf, Inc. (“iWash”), or Antonio’s Kitchen, together with such other
and further relief as the Court deems just and proper.
2. On May 25, 2022, Plaintiff initiated the instant action against Defendants and
Defendant Thomas Gambino by filing a Summons and Verified Complaint with this Court. See
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NYSCEF Doc. No. 1, annexed hereto as Exhibit A. Plaintiff’s Complaint alleges five (5) causes
of action for breach of contract, breach of fiduciary duty, account stated, unjust enrichment and
for a declaratory judgment. See id. Specifically, Plaintiff alleges that Defendants and Defendant
Thomas Gambino have failed to pay in full all rental arrears due and owing by Antonio’s
Kitchen to G. Rose. See id.
3. On July 15, 2022, Defendants filed a Verified Answer to Plaintiff’s Complaint,
alleging five (5) counterclaims for indemnification/contribution, breach of fiduciary duty, an
accounting, diversion and negligence. See NYSCEF Doc. No. 20, annexed hereto as Exhibit B.
Specifically, Defendants assert derivative claims on behalf of G. Rose, Antonio’s Kitchen and
iWash against Plaintiff alleging that Plaintiff has diverted or mismanaged funds or assets
belonging to G. Rose, Antonio’s Kitchen and iWash. See id.
4. However, Defendants’ Counterclaims 2-5 as they relate to any allegations of
diversion or mismanagement of funds or assets or an accounting of iWash must be dismissed as
they are identical to the claims already filed against Plaintiff on behalf of iWash and pending
before this Court in a previously filed matter—Thomas Gambino v. Arcadio Roselli, Index No.
702766/2019, annexed hereto as Exhibit C. See C.P.L.R. § 3211(a)(4) (“A party may move for
judgment dismissing one or more causes of action asserted against him on the ground that there
is another action pending between the same parties for the same cause of action in a court of any
state or the United States; the court need not dismiss upon this ground but may make such order
as justice requires.”); Frank Pompea, Inc. v. Essayan, 36 A.D.2d 745, 745-46 (2d Dep’t 1971)
(dismissing two causes of action that “are identical in every respect with the[] first two
counterclaims in [prior] action. . . . [T]he making of an order which justice requires necessitates
the dismissal of Action No. 2, that clearly being the preferable result to having identical causes
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of action prosecuted at the same time in separate actions.”); Kevorkian v. Harrington, 158 Misc.
2d 464, 468 (Sup. Ct. N.Y. Cnty. 1993) (“A claim asserted as a counterclaim may give rise to a
‘prior action pending’” pursuant to C.P.L.R. § 3211(a)(4)).
5. Additionally, Counterclaims 1-5 filed against Plaintiff as they relate to any
allegations of diversion or mismanagement of funds or assets or an accounting of G. Rose,
Antonio’s Kitchen or iWash must be dismissed as Defendant Anthony does not have standing to
allege these claims derivatively on behalf of G. Rose, iWash or Antonio’s Kitchen. See C.P.L.R.
§ 3211(a)(3) (“A party may move for judgment dismissing one or more causes of action asserted
against him on the ground that the party asserting the cause of action has not legal capacity to
sue.”).
6. Defendant Anthony is only a 33 1/3 % shareholder of G. Rose, a 25 %
shareholder of Antonio’s Kitchen, and a 33 1/3 % shareholder of iWash. See Exhibit A at ¶¶ 14-
15; Exhibit C at ¶ 2. Defendant Anthony fails to plead in his Answer with Counterclaims that he
demanded the initiation of an action by G. Rose, iWash or Antonio’s Kitchen or their managers
for these claims against Plaintiff, or that such a demand would have been futile. See Exhibit B;
Gammel v. Immelt, No. 32005(U), slip op. (Sup. Ct. N.Y. Cnty. June 28, 2019) (“If a plaintiff
fails to plead with particularity that service of a pre-litigation demand should be excused, the
complaint must be dismissed.”) (citation omitted); BCL § 626(c) (the complaint in any
shareholder derivative action “shall set forth with particularity the efforts of the plaintiff to
secure the initiation of such action by the board or the reasons for not making such effort.”);
Evans v. Perl, No. 50775(U), slip op. (Sup. Ct. N.Y. Cnty. April 9, 2008) (“The court rejects
Guardian Evans’ argument that, as a matter of law, no prior demand is necessary before a
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derivative action can be brought against an LLC.”); see also Tzolis v. Wolff, 10 N.Y.3d 100
(2008).
7. For the foregoing reasons, Plaintiff respectfully requests that the Court enter an
Order, pursuant to C.P.L.R. §§ 3211(a)(3) and 3211(a)(4), dismissing Defendants Antonio’s
Kitchen’s and Anthony’s Counterclaims 1-5 filed against Plaintiff as they relate to any
allegations of diversion or mismanagement of funds or assets or an accounting of G. Rose,
iWash or Antonio’s Kitchen, together with such other and further relief as the Court deems just
and proper.
Dated: Valley Stream, New York
July 27, 2022
Respectfully submitted,
PARDALIS & NOHAVICKA, LLP
Israel Klein, Esq.
950 Third Avenue, 11th Floor
New York, New York 10022
Tel: (212) 213-8511
Fax: (347) 897-0094
Israel@pnlawyers.com
Attorneys for Plaintiff
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Rule 202.8-b Certification
I, Israel Klein, Esq., an attorney certified to practice law in the State of New York,
do hereby certify that the attached document contains 933 words as tabulated by word
processing software, exclusive of the caption, table of contents, table of authorities, and signature
block, as applicable, in compliance with the word limits set forth in Uniform Rule 202.8-b(a).
Respectfully submitted,
PARDALIS & NOHAVICKA, LLP
Israel Klein, Esq.
950 Third Avenue, 11th Floor
New York, New York 10022
Tel: (212) 213-8511
Fax: (347) 897-0094
Israel@pnlawyers.com
Attorneys for Plaintiff
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Preview
FILED: QUEENS COUNTY CLERK 07/27/2022 05:46 PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------x ARCADIO ROSELLI, as a holder of thirty-three and Index No.: 711145/2022 one-third percent (33 1/3 %) of the outstanding shares of stock of G. Rose Associates, LLC, suing derivatively on Motion Seq. No. 2 behalf G. ROSE ASSOCIATES, LLC, AFFIRMATION OF Plaintiff, ISRAEL KLEIN, ESQ., IN SUPPORT OF -against- PLAINTIFF’S MOTION TO DISMISS PURSUANT A3T21, LLC, d/b/a ANTONIO’S KITCHEN, TO C.P.L.R. §§ 3211(a)(3) THOMAS GAMBINO and ANTHONY ROSELLI, AND 3211(a)(4) Defendants. ------------------------------------------------------------------------x Israel Klein, Esq., an attorney duly admitted to practice law before the courts of the State of New York and before this Court, as an attorney for the Plaintiff Arcadio Roselli (“Plaintiff”) herein, declares the following to be true under penalty of perjury upon information and belief. 1. I am an associate of the law firm Pardalis & Nohavicka, LLP, counsel for the Plaintiff in the above-captioned matter. I am fully familiar with the facts and circumstances concerning this action and submit this Affirmation in support of Plaintiff’s motion, pursuant to C.P.L.R. §§ 3211(a)(3) and 3211(a)(4), to dismiss Defendants A3T21, LLC, d/b/a Antonio’s Kitchen’s (“Antonio’s Kitchen”) and Anthony Roselli’s (“Anthony”) (collectively, “Defendants”) Counterclaims 1-5 filed against Plaintiff as they relate to any allegations of diversion or mismanagement of funds or assets or an accounting of G. Rose Associates, LLC (“G. Rose”), iWash Sip and Surf, Inc. (“iWash”), or Antonio’s Kitchen, together with such other and further relief as the Court deems just and proper. 2. On May 25, 2022, Plaintiff initiated the instant action against Defendants and Defendant Thomas Gambino by filing a Summons and Verified Complaint with this Court. See 1 of 5 FILED: QUEENS COUNTY CLERK 07/27/2022 05:46 PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/27/2022 NYSCEF Doc. No. 1, annexed hereto as Exhibit A. Plaintiff’s Complaint alleges five (5) causes of action for breach of contract, breach of fiduciary duty, account stated, unjust enrichment and for a declaratory judgment. See id. Specifically, Plaintiff alleges that Defendants and Defendant Thomas Gambino have failed to pay in full all rental arrears due and owing by Antonio’s Kitchen to G. Rose. See id. 3. On July 15, 2022, Defendants filed a Verified Answer to Plaintiff’s Complaint, alleging five (5) counterclaims for indemnification/contribution, breach of fiduciary duty, an accounting, diversion and negligence. See NYSCEF Doc. No. 20, annexed hereto as Exhibit B. Specifically, Defendants assert derivative claims on behalf of G. Rose, Antonio’s Kitchen and iWash against Plaintiff alleging that Plaintiff has diverted or mismanaged funds or assets belonging to G. Rose, Antonio’s Kitchen and iWash. See id. 4. However, Defendants’ Counterclaims 2-5 as they relate to any allegations of diversion or mismanagement of funds or assets or an accounting of iWash must be dismissed as they are identical to the claims already filed against Plaintiff on behalf of iWash and pending before this Court in a previously filed matter—Thomas Gambino v. Arcadio Roselli, Index No. 702766/2019, annexed hereto as Exhibit C. See C.P.L.R. § 3211(a)(4) (“A party may move for judgment dismissing one or more causes of action asserted against him on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires.”); Frank Pompea, Inc. v. Essayan, 36 A.D.2d 745, 745-46 (2d Dep’t 1971) (dismissing two causes of action that “are identical in every respect with the[] first two counterclaims in [prior] action. . . . [T]he making of an order which justice requires necessitates the dismissal of Action No. 2, that clearly being the preferable result to having identical causes 2 2 of 5 FILED: QUEENS COUNTY CLERK 07/27/2022 05:46 PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/27/2022 of action prosecuted at the same time in separate actions.”); Kevorkian v. Harrington, 158 Misc. 2d 464, 468 (Sup. Ct. N.Y. Cnty. 1993) (“A claim asserted as a counterclaim may give rise to a ‘prior action pending’” pursuant to C.P.L.R. § 3211(a)(4)). 5. Additionally, Counterclaims 1-5 filed against Plaintiff as they relate to any allegations of diversion or mismanagement of funds or assets or an accounting of G. Rose, Antonio’s Kitchen or iWash must be dismissed as Defendant Anthony does not have standing to allege these claims derivatively on behalf of G. Rose, iWash or Antonio’s Kitchen. See C.P.L.R. § 3211(a)(3) (“A party may move for judgment dismissing one or more causes of action asserted against him on the ground that the party asserting the cause of action has not legal capacity to sue.”). 6. Defendant Anthony is only a 33 1/3 % shareholder of G. Rose, a 25 % shareholder of Antonio’s Kitchen, and a 33 1/3 % shareholder of iWash. See Exhibit A at ¶¶ 14- 15; Exhibit C at ¶ 2. Defendant Anthony fails to plead in his Answer with Counterclaims that he demanded the initiation of an action by G. Rose, iWash or Antonio’s Kitchen or their managers for these claims against Plaintiff, or that such a demand would have been futile. See Exhibit B; Gammel v. Immelt, No. 32005(U), slip op. (Sup. Ct. N.Y. Cnty. June 28, 2019) (“If a plaintiff fails to plead with particularity that service of a pre-litigation demand should be excused, the complaint must be dismissed.”) (citation omitted); BCL § 626(c) (the complaint in any shareholder derivative action “shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board or the reasons for not making such effort.”); Evans v. Perl, No. 50775(U), slip op. (Sup. Ct. N.Y. Cnty. April 9, 2008) (“The court rejects Guardian Evans’ argument that, as a matter of law, no prior demand is necessary before a 3 3 of 5 FILED: QUEENS COUNTY CLERK 07/27/2022 05:46 PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/27/2022 derivative action can be brought against an LLC.”); see also Tzolis v. Wolff, 10 N.Y.3d 100 (2008). 7. For the foregoing reasons, Plaintiff respectfully requests that the Court enter an Order, pursuant to C.P.L.R. §§ 3211(a)(3) and 3211(a)(4), dismissing Defendants Antonio’s Kitchen’s and Anthony’s Counterclaims 1-5 filed against Plaintiff as they relate to any allegations of diversion or mismanagement of funds or assets or an accounting of G. Rose, iWash or Antonio’s Kitchen, together with such other and further relief as the Court deems just and proper. Dated: Valley Stream, New York July 27, 2022 Respectfully submitted, PARDALIS & NOHAVICKA, LLP Israel Klein, Esq. 950 Third Avenue, 11th Floor New York, New York 10022 Tel: (212) 213-8511 Fax: (347) 897-0094 Israel@pnlawyers.com Attorneys for Plaintiff 4 4 of 5 FILED: QUEENS COUNTY CLERK 07/27/2022 05:46 PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/27/2022 Rule 202.8-b Certification I, Israel Klein, Esq., an attorney certified to practice law in the State of New York, do hereby certify that the attached document contains 933 words as tabulated by word processing software, exclusive of the caption, table of contents, table of authorities, and signature block, as applicable, in compliance with the word limits set forth in Uniform Rule 202.8-b(a). Respectfully submitted, PARDALIS & NOHAVICKA, LLP Israel Klein, Esq. 950 Third Avenue, 11th Floor New York, New York 10022 Tel: (212) 213-8511 Fax: (347) 897-0094 Israel@pnlawyers.com Attorneys for Plaintiff 5 5 of 5