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  • Arcadio Roselli, As A Holder Of Thirty-Three And One-Third Percent (33 1/3 %) Of The Outstanding Shares Of Stock Of G. Rose Associates, Llc, Suing Derivatively On Behalf Of G. Rose Associates, Llc v. A3t21, Llc D/B/A Antonio'S Kitchen, Thomas Gambino, Anthony RoselliCommercial - Contract document preview
  • Arcadio Roselli, As A Holder Of Thirty-Three And One-Third Percent (33 1/3 %) Of The Outstanding Shares Of Stock Of G. Rose Associates, Llc, Suing Derivatively On Behalf Of G. Rose Associates, Llc v. A3t21, Llc D/B/A Antonio'S Kitchen, Thomas Gambino, Anthony RoselliCommercial - Contract document preview
  • Arcadio Roselli, As A Holder Of Thirty-Three And One-Third Percent (33 1/3 %) Of The Outstanding Shares Of Stock Of G. Rose Associates, Llc, Suing Derivatively On Behalf Of G. Rose Associates, Llc v. A3t21, Llc D/B/A Antonio'S Kitchen, Thomas Gambino, Anthony RoselliCommercial - Contract document preview
  • Arcadio Roselli, As A Holder Of Thirty-Three And One-Third Percent (33 1/3 %) Of The Outstanding Shares Of Stock Of G. Rose Associates, Llc, Suing Derivatively On Behalf Of G. Rose Associates, Llc v. A3t21, Llc D/B/A Antonio'S Kitchen, Thomas Gambino, Anthony RoselliCommercial - Contract document preview
  • Arcadio Roselli, As A Holder Of Thirty-Three And One-Third Percent (33 1/3 %) Of The Outstanding Shares Of Stock Of G. Rose Associates, Llc, Suing Derivatively On Behalf Of G. Rose Associates, Llc v. A3t21, Llc D/B/A Antonio'S Kitchen, Thomas Gambino, Anthony RoselliCommercial - Contract document preview
  • Arcadio Roselli, As A Holder Of Thirty-Three And One-Third Percent (33 1/3 %) Of The Outstanding Shares Of Stock Of G. Rose Associates, Llc, Suing Derivatively On Behalf Of G. Rose Associates, Llc v. A3t21, Llc D/B/A Antonio'S Kitchen, Thomas Gambino, Anthony RoselliCommercial - Contract document preview
  • Arcadio Roselli, As A Holder Of Thirty-Three And One-Third Percent (33 1/3 %) Of The Outstanding Shares Of Stock Of G. Rose Associates, Llc, Suing Derivatively On Behalf Of G. Rose Associates, Llc v. A3t21, Llc D/B/A Antonio'S Kitchen, Thomas Gambino, Anthony RoselliCommercial - Contract document preview
  • Arcadio Roselli, As A Holder Of Thirty-Three And One-Third Percent (33 1/3 %) Of The Outstanding Shares Of Stock Of G. Rose Associates, Llc, Suing Derivatively On Behalf Of G. Rose Associates, Llc v. A3t21, Llc D/B/A Antonio'S Kitchen, Thomas Gambino, Anthony RoselliCommercial - Contract document preview
						
                                

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FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------x 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. ------------------------------------------------------------------------x 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. 1 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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 2 2 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------x 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. ------------------------------------------------------------------------x 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 3 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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 2 4 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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. 3 5 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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 4 6 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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 5 7 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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) 6 8 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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. 7 9 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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. 8 10 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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. 9 11 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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. 10 12 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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. 11 13 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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. 12 14 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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. 13 15 of 26 FILED: QUEENS COUNTY CLERK 05/25/2022 09/01/2022 07:58 02:31 AM PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 1 35 RECEIVED NYSCEF: 05/25/2022 09/01/2022 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.