Preview
FILED: QUEENS COUNTY CLERK 05/25/2022
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NYSCEF DOC. NO. 1
35 RECEIVED NYSCEF: 05/25/2022
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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ARCADIO ROSELLI, as a holder of thirty-three and
one-third percent (33 1/3 %) of the outstanding shares of Index No.:
stock of G. Rose Associates, LLC, suing derivatively on
behalf G. ROSE ASSOCIATES, LLC, SUMMONS
Plaintiff,
-against-
A3T21, LLC, d/b/a ANTONIO’S KITCHEN,
THOMAS GAMBINO and ANTHONY ROSELLI,
Defendants.
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TO: THE ABOVE-NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action
and to serve a copy of your Answer, or, if the Complaint is not served with this Summons, to
serve a notice of appearance, on the Plaintiff’s attorney within 20 days after service of this
Summons, exclusive of the day of service, where service is made by delivery upon you
personally within the state, or within 30 days after completion of service where service is made
in any other manner. In case of your failure to appear or answer, judgment will be taken against
you by default for the relief demanded in the Complaint. The basis of the venue is Defendants’
Residence.
Dated: Valley Stream, New York
May 24, 2022
Respectfully submitted,
PARDALIS & NOHAVICKA, LLP
Israel Klein, Esq.
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950 Third Avenue, 11th Floor
New York, New York 10022
Tel: (212) 213-8511
Fax: (347) 897-0094
Israel@pnlawyers.com
Attorneys for Plaintiff
TO: A3T21, LLC, d/b/a Antonio’s Kitchen
76-02A 21st Avenue
East Elmhurst, New York, 11370
Thomas Gambino
25-32 81st Street
Jackson Heights, New York 11370
Anthony Roselli
465 Ardsley Blvd.
Garden City, New York 11530
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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ARCADIO ROSELLI, as a holder of thirty-three and
one-third percent (33 1/3 %) of the outstanding shares of Index No.:
stock of G. Rose Associates, LLC, suing derivatively on
behalf G. ROSE ASSOCIATES, LLC, VERIFIED COMPLAINT
AND JURY DEMAND
Plaintiff,
-against-
A3T21, LLC, d/b/a ANTONIO’S KITCHEN,
THOMAS GAMBINO and ANTHONY ROSELLI,
Defendants.
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INTRODUCTION
1. Plaintiff Arcadio Roselli (“Arcadio”), as a holder of thirty-three and one-third
percent (33 1/3 %) of the outstanding shares of stock of G. Rose Associates, LLC (“G. Rose”),
brings this action derivatively on behalf of G. Rose (“collectively, “Plaintiff”), by and through
his attorneys, Pardalis & Nohavicka, LLP, against Defendants A3T21, LLC, d/b/a Antonio’s
Kitchen (“Antonio’s Kitchen”), Thomas Gambino (“Gambino”) and Anthony Roselli
(“Anthony”) (collectively, “Defendants”) alleging claims for breach of contract, breach of
fiduciary duty, account stated and unjust enrichment, and seeking a declaratory judgment,
injunctive relief, damages and all other appropriate relief for the resulting damages Plaintiff
suffered and continues to suffer as a direct and proximate result of Defendants’ wrongful actions.
Plaintiff alleges upon information and belief as follows:
JURISDICTION AND VENUE
2. This Court has personal jurisdiction over Defendant Antonio’s Kitchen, pursuant
to C.P.L.R. § 301, as Defendant Antonio’s Kitchen conducts business throughout the State of
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New York. This Court also has personal jurisdiction over Defendant Antonio’s Kitchen, pursuant
to C.P.L.R. § 301, as Defendant Antonio’s Kitchen is a resident of the State of New York.
3. This Court has personal jurisdiction over Defendant Gambino, pursuant to
C.P.L.R. § 301, as Defendant Gambino conducts business throughout the State of New York.
This Court also has personal jurisdiction over Defendant Gambino, pursuant to C.P.L.R. § 301,
as Defendant Gambino is a resident of the State of New York.
4. This Court has personal jurisdiction over Defendant Anthony, pursuant to
C.P.L.R. § 301, as Defendant Anthony conducts business throughout the State of New York.
This Court also has personal jurisdiction over Defendant Anthony, pursuant to C.P.L.R. § 301, as
Defendant Anthony is a resident of the State of New York.
5. Venue is proper in the Supreme Court of the State of New York, County of
Queens, pursuant to C.P.L.R. § 503(a), as Defendants Antonio’s Kitchen and Gambino are
residents of Queens County.
PARTIES
6. Plaintiff Arcadio is a citizen of the State of New York and a thirty-three and one-
third percent (33 1/3 %) shareholder of G. Rose.
7. Plaintiff Arcadio is also a twenty-five percent (25 %) shareholder of Antonio’s
Kitchen.
8. Plaintiff Arcadio is the brother of Defendant Anthony.
9. Plaintiff Arcadio is the former brother-in-law of Defendant Gambino.
10. Plaintiff G. Rose is a domestic limited liability company with its principal place of
business located at 76-02 21st Avenue, East Elmhurst, New York 11370.
11. Defendant Antonio’s Kitchen is a domestic limited liability company with its
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principal place of business located at 76-02A 21st Avenue, East Elmhurst, New York 11370.
12. Defendant Gambino is a citizen of the State of New York and a thirty-three and
one-third percent (33 1/3 %) shareholder of G. Rose.
13. Defendant Gambino is also a twenty-five percent (25 %) shareholder of Antonio’s
Kitchen.
14. Defendant Anthony is a citizen of the State of New York and a thirty-three and one-
third percent (33 1/3 %) shareholder of G. Rose.
15. Defendant Anthony is also a twenty-five percent (25 %) shareholder of Antonio’s
Kitchen.
STATEMENT OF FACTS
A. The Organizational Structure of Plaintiff G. Rose and its Related Entities
16. On March 15, 2001, Plaintiff Arcadio incorporated G. Rose for the purpose of
purchasing the building located at 76-02 and 76-08 21st Avenue, East Elmhurst, New York 11370
(collectively, the “Premises”).
17. The purchase of the Premises was part of a detailed investment strategy developed
by Plaintiff Arcadio for the acquisition of several strategic real estate properties.
18. Utilizing his strong business acumen and years of entrepreneurial experience, as
well as his experience as a licensed Series 7 financial advisor, Plaintiff Arcadio wished to create
an investment portfolio that his family could participate in and earn a living.
19. Accordingly, Plaintiff Arcadio invited his brother, Defendant Anthony, and his
former brother-in-law, Defendant Gambino, to share ownership interests in G. Rose.
20. In or about April 2001, Plaintiff Arcadio contacted the owner of the Premises and
successfully negotiated a favorable purchase price for the Premises on behalf of G. Rose.
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21. However, for no apparent reason, and without the knowledge or consent of Plaintiff
Arcadio, Defendant Gambino meddled in the already finalized negotiation by leveraging a friend
of the owner’s real estate attorney to attempt to obtain a reduction in the purchase price.
22. Defendant Gambino did so after Plaintiff Arcadio expressly told him not to engage
in this bad faith negotiation tactic.
23. Due solely to the bad faith negotiation tactics of Defendant Gambino, the owner
terminated the sale and proceeded to sell the Premises to an alternate buyer.
24. Plaintiff Arcadio immediately intervened and was ultimately able to convince the
owner to follow through with the sale of the Premises to G. Rose, but G. Rose was forced to comply
with two (2) additional conditions imposed by the owner.
25. First, G. Rose had to pay an additional $100,000 for the purchase of the Premises.
26. Second, as the owner did not want to sell the Premises to Defendants Anthony or
Gambino and was only agreeing to the sale due to the good rapport built by Plaintiff Arcadio, G.
Rose had to execute a formal operating agreement reflecting that Plaintiff Arcadio was to act as
the president and managing shareholder of G. Rose. Annexed hereto as Exhibit A is an affidavit
from the previous owner of the Premises to this effect.
27. Upon G. Rose’s purchase of the Premises, the Premises had five (5) tenants: (1) a
candy store; (2) a deli known as Roma Deli; (3) a social club known as FIDA; (4) a laundromat;
and (5) a meat wholesaler.
28. It was the agreement, understanding and intention of the members of G. Rose when
purchasing the Premises that Defendant Gambino was to exit a failing deli business he was
currently operating and take over Roma Deli’s lease.
29. However, shortly prior to G. Rose’s purchase of the Premises, Plaintiff Arcadio
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learned that Defendant Gambino, without the knowledge or consent of Plaintiff Arcadio,
purchased the candy store from its prior owner.
30. Defendant Gambino did so to hold and exploit the candy store’s favorable lease.
31. Once again, Defendant Gambino had interfered with Plaintiff Arcadio’s investment
strategy by placing a financial burden on G. Rose to actively maintain the candy store, rather than
passively collecting rent from its prior owner.
32. Specifically, in order to help Defendant Gambino renovate and operate the candy
store, G. Rose, Plaintiff Arcadio and Defendant Anthony loaned Defendant Gambino
approximately $130,000.
33. What were once funds that Plaintiff Arcadio had allocated for the acquisition of
additional real estate investments as part of his detailed investment strategy, were now tied up in
an interest free loan to Defendant Gambino.
34. Nevertheless, despite the assistance of G. Rose, Plaintiff Arcadio and Defendant
Anthony and their best efforts, Defendant Gambino was unable to operate the candy store
successfully.
35. Indeed, after several months, Defendant Gambino stopped paying G. Rose rent for
the candy store’s occupancy, causing G. Rose further financial loss.
36. In essence, Defendant Gambino’s bad faith tactics had turned the candy store from
an asset as a once rent paying tenant into a liability.
37. True to form, it was not long before Defendant Gambino found a new way to
sabotage G. Rose’s financial interests.
38. Ignoring the concerns voiced by Plaintiff Arcadio, Defendant Gambino proceeded
to rename and convert the candy store into “Tommy’s Deli,” and began selling deli sandwiches in
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direct competition with G. Rose’s tenant Roma Deli, the business Defendant Gambino was
supposed to operate to begin with.
39. Naturally, Defendant Gambino’s actions caused Roma Deli’s revenue to drop.
40. As a result, Roma Deli, G. Rose’s highest paying tenant, threatened to vacate the
Premises.
41. The existence of competing businesses within the same building, with direct
implications on the rent roll, also reduced the market value of the Premises.
42. Around the same time, FIDA vacated its space in the Premises, and it was
Defendant Anthony’s turn to undermine Plaintiff Arcadio’s investment strategy and G. Rose’s
profitability.
43. Ignoring the concerns voiced by Plaintiff Arcadio, Defendant Anthony and an
outside business partner, Tony Ordas, assumed FIDA’s lease and created a restaurant pizzeria
known as Antonio’s Pizzeria & Wine Bar.
44. Like Defendant Gambino, Defendant Anthony had interfered with Plaintiff
Arcadio’s investment strategy by placing a financial burden on G. Rose to actively maintain
Antonio’s Pizzeria & Wine Bar, rather than passively collecting rent from another more
appropriate tenant.
45. This left G. Rose with three (3) food establishments under the same roof side by
side struggling to compete for the same clientele business, defying sound business principles of
real property ownership.
46. Inevitably, due to the poor performance of each of these businesses, Plaintiff
Arcadio was forced to intervene to try and salvage G. Rose’s financial prospects.
47. Plaintiff Arcadio developed a business plan and strategy to combine the three (3)
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food establishments, Tommy’s Deli, Roma Deli and Antonio’s Pizzeria & Wine Bar, into a single
restaurant concept known as Antonio’s Kitchen.
48. In this way, Plaintiff Arcadio was able to eliminate the untenable business
competition and cannibalizing of the three (3) entities within the Premises, while eliminating the
redundancies in their operations, including overlapping kitchen equipment and staff.
49. As a result, Plaintiff Arcadio was able to transform a competitive disadvantage into
an outsized advantage for G. Rose.
50. In addition, as part of this business plan, Plaintiff Arcadio also transformed a
dormant underutilized space once occupied by G. Rose’s meat wholesaler tenant into a catering
and private party space to serve as a distinguishing competitive advantage while creating a new
profit center for Antonio’s Kitchen.
51. Plaintiff Arcadio also began negotiating G. Rose’s acquisition of its laundromat
tenant’s lease and business to further increase the market value of the G. Rose real property.
52. Specifically, ownership of the laundromat would allow G. Rose to make updates
and renovations to that portion of the Premises.
53. Ownership of the laundromat would also allow G. Rose the option to relocate
Antonio’s Kitchen into a more desirable corner location with more foot traffic.
54. Plaintiff Arcadio also believed he could increase the profitability of the laundromat
itself through the development of a web-based application for laundry.
55. Indeed, after Plaintiff Arcadio successfully acquired the laundromat and rebranded
it as iWash Sip and Surf, Inc. (“iWash”), he developed a proprietary Uber like laundry pick-up and
delivery logistics software to disrupt the laundry industry and maximize profits, similar in concept
to what Uber did to the taxi and limousine industry and what AirBnB did in hospitality.
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56. Essentially, as a result of Defendants Gambino’s and Anthony’s bad faith actions
and poor business decisions, Plaintiff Arcadio was forced to abandon his initial investment strategy
to acquire strategic real estate properties, and instead oversee a less lucrative portfolio of retail
establishments.
57. Indeed, in his capacity as managing shareholder of G. Rose and iWash, Plaintiff
Arcadio oversaw the operation of both entities as well as Antonio’s Kitchen for numerous years.
58. However, by about 2019, Antonio’s Kitchen had accrued significant rent arrears
due and owing to G. Rose.
59. Accordingly, acting in the best interests of G. Rose, Plaintiff Arcadio issued a letter
to Antonio’s Kitchen requesting that it make payment to G. Rose for its delinquent rent.
60. As a result, in retaliation for Plaintiff Arcadio’s request, and in complete disregard
of the financial opportunities Plaintiff Arcadio created for them, Defendants Gambino and
Anthony conspired to utilize their combined majority control of G. Rose and iWash, and their
combined majority control together with Tony Ordas of Antonio’s Kitchen, to oppress Plaintiff
Arcadio from the operations of all three (3) entities.
61. What followed was a series of poor business decisions and incapable leadership
that has negatively impacted the financial state of G. Rose, Antonio’s Kitchen and iWash.
62. Indeed, Antonio’s Kitchen is in dire financial duress and is on the verge of
insolvency.
63. Motivated only by a desire to keep Antonio’s Kitchen afloat while lining their
pockets with distributions whenever feasible, Defendants Gambino and Anthony have abandoned
the financial interests of G. Rose as a remote consideration.
64. This leaves Plaintiff Arcadio as the only shareholder concerned with protecting G.
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Rose’s well-being and financial interests.
B. Antonio’s Kitchen is Delinquent on its Rental Obligations to G. Rose
65. G. Rose is the owner and landlord of the Premises.
66. G. Rose is the landlord of Antonio’s Kitchen, a commercial tenant and occupant of
the Premises.
67. In or about February 2012, G. Rose, as landlord, entered into a month-to-month
lease with Antonio’s Pizzeria & Wine Bar, whereby Antonio’s Pizzeria & Wine Bar agreed to pay
G. Rose $3,000 per month as rent plus the costs of utilities for its use and occupancy of the
Premises. See Exhibit B.
68. From about 2014 through 2016, G. Rose invested in renovating the Premises to
increase the square footage of Antonio’s Pizzeria & Wine Bar and transform itinto Antonio’s
Kitchen.
69. As a result, in or about July 2016, G. Rose, as landlord, entered into a new month-
to-month lease with Antonio’s Kitchen, as tenant, whereby Antonio’s Kitchen agreed to pay G.
Rose $12,000 per month as rent plus the costs of utilities for its use and occupancy of the Premises.
See id.
70. At all times, Plaintiff fully performed all of its obligations pursuant to its month-
to-month lease with Antonio’s Kitchen in a competent manner.
71. To date, Antonio’s Kitchen has failed to pay in full all rent due and owing by
Antonio’s Kitchen to G. Rose for its use and occupancy of the Premises. See id.
72. In breach of its contract with G. Rose, Antonio’s Kitchen has accrued rental arrears
for its use and occupancy of the Premises in the amount of $191,999.20 (“Outstanding Balance”).
See id.
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73. Antonio’s Kitchen’s rental arrears are due to the wrongful actions of Defendants
Gambino and Anthony.
74. Specifically, in or about March 2020, Gambino and Anthony unilaterally decided
to reduce the rent due by Antonio’s Kitchen to G. Rose for its use and occupancy of the Premises
from $12,000 per month to $6,000. See Exhibits B-C.
75. Defendants Gambino and Anthony did so without noticing a meeting to afford all
shareholders of G. Rose, including Plaintiff Arcadio, an opportunity to vote on the issue.
76. Defendants Gambino and Anthony did so without holding a vote on the issue
among all shareholders of G. Rose, including Plaintiff Arcadio.
77. Defendants Gambino and Anthony did so unilaterally without the consent,
authorization or approval of Plaintiff Arcadio.
78. Defendants Gambino and Anthony did so over the numerous objections made by
Plaintiff Arcadio.
79. Defendants Gambino and Anthony did so for the sole purpose of benefiting
Antonio’s Kitchen, rather than organizing a capital call among the shareholders of Antonio’s
Kitchen.
80. Defendants Gambino and Anthony did so intentionally knowing that such actions
were at the expense and to the determinant of G. Rose.
81. Defendants Gambino and Anthony did so intentionally knowing that such actions
did not benefit G. Rose in any manner.
82. Though Defendants Gambino and Anthony did so in response to the COVID-19
pandemic, they did so without utilizing funds Antonio’s Kitchen had at its disposal for the purpose
of paying rent.
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83. Rather, Defendants Gambino and Anthony improperly utilized such funds to issue
and take distributions.
84. On numerous occasions, Plaintiff Arcadio has requested payment from Defendants
for the Outstanding Balance due by Antonio’s Kitchen to G. Rose for its use and occupancy of the
Premises.
85. On December 4, 2020, Plaintiff Arcadio served a notice of default on Defendants
notifying them that Antonio’s Kitchen was in breach of its month-to-month lease in that it had an
outstanding balance of rental payments due and owing to G. Rose in the amount of $299,837.65
as of December 4, 2020. See Exhibit D.
86. On January 26, 2021, Plaintiff Arcadio served a notice of default on Defendants
notifying them that Antonio’s Kitchen was in breach of its month-to-month lease in that it had an
outstanding balance of rental payments due and owing to G. Rose in the amount of $299,837.65
as of December 4, 2020. See Exhibit E.
87. On June 14, 2021, Plaintiff Arcadio served a notice of default on Defendants
notifying them that Antonio’s Kitchen was in breach of its month-to-month lease in that it had an
outstanding balance of rental payments due and owing to G. Rose in the amount of $299,837.65
as of December 4, 2020. See Exhibit F.
88. At all times, Defendants failed to dispute the amount claimed by Plaintiff Arcadio
as due and owing by Antonio’s Kitchen to G. Rose in rental arrears for its use and occupancy of
the Premises. See Exhibit C.
89. Indeed, Defendant Anthony expressly confirmed and consented to the amount
claimed by Plaintiff Arcadio as due and owing by Antonio’s Kitchen to G. Rose in rental arrears
for its use and occupancy of the Premises. See id.
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90. At all times, Defendants failed to pay the Outstanding Balance of rental payments
due and owing by Antonio’s Kitchen to G. Rose for its use and occupancy of the Premises.
C. Demanding Shareholder Action would be Futile
91. On numerous occasions, Plaintiff Arcadio has noticed a meeting of all shareholders
of G. Rose to discuss and hold a vote on whether the instant action should be initiated on behalf
of G. Rose to recover the Outstanding Balance due and owing by Antonio’s Kitchen. See Exhibit
G.
92. On numerous occasions, Plaintiff Arcadio has noticed a meeting of all shareholders
of G. Rose to discuss and hold a vote on whether an action should be initiated on behalf of G. Rose
to evict Antonio’s Kitchen from the Premises. See id.
93. At all times, Defendants Gambino and Anthony have refused to attend said
meetings and participate in a vote as to whether the instant action should be initiated on behalf of
G. Rose to recover the Outstanding Balance due and owing by Antonio’s Kitchen. See id.
94. At all times, Defendants Gambino and Anthony have refused to attend said
meetings and participate in a vote as to whether an action should be initiated on behalf of G. Rose
to evict Antonio’s Kitchen from the Premises. See id.
95. It would be futile for Plaintiff Arcadio to make any further attempts to notice a
meeting of all shareholders of G. Rose to discuss and hold a vote on whether the instant action
should be initiated on behalf of G. Rose to recover the Outstanding Balance due and owing by
Antonio’s Kitchen.
96. It would be futile for Plaintiff Arcadio to make any further attempts to notice a
meeting of all shareholders of G. Rose to discuss and hold a vote on whether an action should be
initiated on behalf of G. Rose to evict Antonio’s Kitchen from the Premises.
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97. It would further be futile for Plaintiff Arcadio to hold a vote on whether the instant
action should be initiated on behalf of G. Rose to recover the Outstanding Balance due and owing
by Antonio’s Kitchen.
98. It would further be futile for Plaintiff Arcadio to hold a vote on whether an action
should be initiated on behalf of G. Rose to evict Antonio’s Kitchen from the Premises.
99. Defendants Gambino and Anthony have repeatedly demonstrated a pattern and
practice of favoring and placing the interests of Antonio’s Kitchen above the best interests of G.
Rose.
100. At all times, Defendant Gambino and Anthony have acted in bad faith in favoring
and placing the interests of Antonio’s Kitchen above the best interests of G. Rose.
101. From G. Rose’s perspective, there is no legitimate good faith basis for allowing
Antonio’s Kitchen to pay reduced rent.
102. From G. Rose’s perspective, there is no legitimate good faith basis for allowing
Antonio’s Kitchen to continue to occupy the Premises without paying all rental arrears in full.
103. It is in G. Rose’s best interest to enforce its month-to-month lease with Antonio’s
Kitchen and collect the Outstanding Balance due and owing by Antonio’s Kitchen in full.
104. As Antonio’s Kitchen cannot pay and/or has not paid its rental obligations to G.
Rose in full, it is in G. Rose’s best interest to proceed with an action to evict Antonio’s Kitchen
from the Premises and obtain a new tenant that will meet its rental obligations to G. Rose in full.
105. Indeed, even if a majority vote among the shareholders of G. Rose was against the
initiation of the instant action on behalf of G. Rose to recover the Outstanding Balance due and
owing by Antonio’s Kitchen, such vote would be invalid as contrary to the best interests of G.
Rose.
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106. Indeed, even if a majority vote among the shareholders of G. Rose was against the
initiation of an action on behalf of G. Rose to evict Antonio’s Kitchen from the Premises, such
vote would be invalid as contrary to the best interests of G. Rose.
COUNT I
BREACH OF CONTRACT
(as against Defendant Antonio’s Kitchen)
107. Plaintiff repeats and realleges all allegations as if fully set forth herein.
108. In or about February 2012, G. Rose, as landlord, entered into a month-to-month
lease with Antonio’s Pizzeria & Wine Bar, whereby Antonio’s Pizzeria & Wine Bar agreed to pay
G. Rose $3,000 per month as rent plus the costs of utilities for its use and occupancy of the
Premises.
109. From about 2014 through 2016, G. Rose invested in renovating the Premises to
increase the square footage of Antonio’s Pizzeria & Wine Bar and transform itinto Antonio’s
Kitchen.
110. As a result, in or about July 2016, G. Rose, as landlord, entered into a new month-
to-month lease with Antonio’s Kitchen, as tenant, whereby Antonio’s Kitchen agreed to pay G.
Rose $12,000 per month as rent plus the costs of utilities for its use and occupancy of the Premises.