Preview
FILED: QUEENS COUNTY CLERK 10/04/2022 12:43 PM INDEX NO. 711145/2022
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/04/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------------------------------X Index No.: 711145/2022
ARCADIO as a holder of thirty-three and one-
ROSELLI,
third percent (33 1/3 %) of the outstanding shares of stock of AFFIDAVIT OF
G. Rose Associates, LLC, suing derivatively on behalf of G. ANTHONY ROSELLI
ROSE ASSOCIATES, LLC, IN OPPOSITION TO
PLAINTIFF'S MOTION
Plaintiffs, FOR SUMMARY
JUDGMENT
- against - Motion Seq. 003
A3T21, LLC, d/b/a ANTONIO'S KITCHEN, THOMAS
GAMBINO and ANTHONY ROSELLI,
Defendants.
--------------------------------------------------------------X
STATE OF NEW YORK )
)
COUNTY OF NASSAU )
ANTHONY ROSELLI, being duly sworn, deposes and states the following upon
information and belief:
1. I am a citizen of the State of New York and a resident of Nassau County.
2. I am a Defendant in the above-captioned matter. As such, I am personally
familiar with the facts and circumstances concerning this matter.
3. I submit this Affidavit based upon my personal knowledge in opposition to
Plaintiff's Motion for Summary Judgment, together with such other and further relief as the
Court deem just and proper.
4. G Rose is a domestic limited liability company and is the owner of 76-02 21st
Avenue, East Elmhurst, NY, which is a commercial property divided into several separate
storefronts (the "Building") and leased to three tenants. G Rose is owned by myself and members
Plaintiff Arcadio ("Arcadio") and Defendant Thomas Gambino ("Gambino"), each holding a
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33 1/3% interest in the company. G Rose is a family owed entity, as Arcadio is my brother, and
Thomas Gambino is Arcadio's ex-brother-in-law.
5. The tenants of the Building are Antonio's Kitchen, which consists of two limited
liability companies, A3T21, LLC and A3T76, LLC (which has not been joined to this action)
which jointly operate Antonio's Kitchen which consists of a restaurant and delicatessen, and
IWash Sip & Surf, Inc. ("I Wash"). Antonio's, consisting of two (2) separate limited liability
companies and I Wash are separate entities, but each of which is owned by myself, Arcadio,
Gambino and Antonio Ordas ("Ordas") (who is not a party in this action), with each member or
shareholder holding a 25% share in each separate entity. Therefore, Arcadio, Gambino and I are
both landlords and tenants of G Rose.
6. Arcadio was the manager of G Rose, Antonio's Kitchen and I Wash. Arcadio
mismanaged G Rose, I Wash and Antonio's Kitchen, and diverted cash and other assets from the
companies. When Gambino and Ordas discovered Arcadio's mismanagement and diversion of
assets for his own personal use from I Wash, they initiated an action for an order of dissolution
in Queens County entitled In the Matter of the Application of Thomas Gambino and Antonio
Ordas, individually, and on behalf of I Wash Sip and Surf Inc., v. Arcadio Roselli and Anthony
Roselli, Index No: 702766/2019. This matter is currently pending before the Court, and Arcadio
has been directed to provide an accounting for I Wash to the other members, and to return all
funds diverted from I Wash. See the Decision of Judge Livote, attached hereto as Exhibit B.
To date, Arcadio has failed to provide an accounting or to return the improperly diverted funds,
though he has been directed to do so by the Court.
7. In the interim, Gambino, Ordas and I have held a properly noticed meeting of
shareholders of I Wash, which meeting was on notice to Arcadio, and we have voted to take
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control of the management of I Wash. By Resolution we have ordered Arcadio to surrender all
books, records and accounts. The notice and minutes of the duly noticed shareholder meeting
are attached as Exhibit C.
8. I believe Arcadio subsequently filed this action to obfuscate his responsibility for
mismanagement of, and for diverting assets in, I Wash. In response to Arcadio's Complaint in
this action, Gambino, Ordas and I have additionally permitted Antonio's to sue Arcadio on its
Defendants'
own behalf for claims as asserted in the Answer and Counterclaims, which is
attached hereto as Exhibit A.
9. Arcadio may be culpable for damages that may offset any damages to G. Rose, if
any are owed. Upon information and belief, Arcadio's culpable conduct has caused damages in
Defendants'
excess of $1,000,000.00. (See Exhibit A, Verified Answer, at paragraph 41.)
10. As stated in my Verified Answer, I deny, or deny information to form a belief as
to each and every one of Arcadio's allegations. See Exhibit A at ¶¶ 1 and 2.
11. There has been no discovery in this case. There have been no documents
exchanged and no depositions have been taken. Furthermore, we are stillwaiting for Arcadio to
turnover the books and records from I Wash and return the diverted funds.
12. I do not agree with Arcadio's version of what he believes has transpired with
respect to Antonio's. Contrary to what Arcadio has asserted in his affidavit, (NYSCEF doc # 42)
I believe that I am acting in the best interests of G Rose, and that an eviction of tenant Antonio's
is not a prudent business judgment as it isrisky, costly and the leased premises will require
extensive renovation. I believe this is not a sound business judgment in this post-
especially
pandemic economic climate. The business path that Arcadio seeks is not in the best interests of
G Rose.
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13. As most of the facts in this case are disputed, and there are many genuine issues
to be tried, and for the reasons set forth by my attorney in his accompanying Affirmation, I
believe Plaintiff's motion for summary judgment should be denied in its entirety, and for such
and other further relief as this court deems just and proper.
Sworn to before me this
1601
day of September, 2022 Anthony selli
Notary Public
MICHAEL LIEBLER
NOTARY PUBLIC,STATE OF NEW YORK
RegistrationNo. 02L16345888
QualifiedIn NassauCounty
Commission ExpiresAugust 01,2024
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CERTIFICATION PURSUANT TO UNIFORM RULE 202.8-b
I,James G. Marsh, an attorney admitted to practice in the Courts of the State of New York,
and a member of the firm O'Reilly, Marsh & Corteselli, P.C., attorneys for the defendants, A3T21,
LLC D/B/A ANTONIO'S KITCHEN and ANTHONY ROSELLI, hereby certifies that the
foregoing papers constituting DEFENDANT'S AFFIDAVIT IN OPPOSITION TO PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT (the "Document") complies with section 202.8-b of
the Uniform Rules of the Supreme Court. According to the word count of the word-processing
system used to prepare the Document, the total number of words contained in the Document is
835, which is in compliance with the limitations as set forth in section 202.8-b of the Uniform
Rules of the Supreme Court.
Dated: Mineola, New York
September 16, 2022
O'REIL , MARSH & CORTESELLI P.C.
By:
J S G. MARSH, ESQ.
A neys for Defendants - Roselli and
Anthony
21, LLC d /a Antonio's Kitchen
2 Old Country Road, Second Floor
Mineola, New York 11501
(516) 741-1818
5
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Preview
FILED: QUEENS COUNTY CLERK 10/04/2022 12:43 PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/04/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------X Index No.: 711145/2022 ARCADIO as a holder of thirty-three and one- ROSELLI, third percent (33 1/3 %) of the outstanding shares of stock of AFFIDAVIT OF G. Rose Associates, LLC, suing derivatively on behalf of G. ANTHONY ROSELLI ROSE ASSOCIATES, LLC, IN OPPOSITION TO PLAINTIFF'S MOTION Plaintiffs, FOR SUMMARY JUDGMENT - against - Motion Seq. 003 A3T21, LLC, d/b/a ANTONIO'S KITCHEN, THOMAS GAMBINO and ANTHONY ROSELLI, Defendants. --------------------------------------------------------------X STATE OF NEW YORK ) ) COUNTY OF NASSAU ) ANTHONY ROSELLI, being duly sworn, deposes and states the following upon information and belief: 1. I am a citizen of the State of New York and a resident of Nassau County. 2. I am a Defendant in the above-captioned matter. As such, I am personally familiar with the facts and circumstances concerning this matter. 3. I submit this Affidavit based upon my personal knowledge in opposition to Plaintiff's Motion for Summary Judgment, together with such other and further relief as the Court deem just and proper. 4. G Rose is a domestic limited liability company and is the owner of 76-02 21st Avenue, East Elmhurst, NY, which is a commercial property divided into several separate storefronts (the "Building") and leased to three tenants. G Rose is owned by myself and members Plaintiff Arcadio ("Arcadio") and Defendant Thomas Gambino ("Gambino"), each holding a 1 of 5 FILED: QUEENS COUNTY CLERK 10/04/2022 12:43 PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/04/2022 33 1/3% interest in the company. G Rose is a family owed entity, as Arcadio is my brother, and Thomas Gambino is Arcadio's ex-brother-in-law. 5. The tenants of the Building are Antonio's Kitchen, which consists of two limited liability companies, A3T21, LLC and A3T76, LLC (which has not been joined to this action) which jointly operate Antonio's Kitchen which consists of a restaurant and delicatessen, and IWash Sip & Surf, Inc. ("I Wash"). Antonio's, consisting of two (2) separate limited liability companies and I Wash are separate entities, but each of which is owned by myself, Arcadio, Gambino and Antonio Ordas ("Ordas") (who is not a party in this action), with each member or shareholder holding a 25% share in each separate entity. Therefore, Arcadio, Gambino and I are both landlords and tenants of G Rose. 6. Arcadio was the manager of G Rose, Antonio's Kitchen and I Wash. Arcadio mismanaged G Rose, I Wash and Antonio's Kitchen, and diverted cash and other assets from the companies. When Gambino and Ordas discovered Arcadio's mismanagement and diversion of assets for his own personal use from I Wash, they initiated an action for an order of dissolution in Queens County entitled In the Matter of the Application of Thomas Gambino and Antonio Ordas, individually, and on behalf of I Wash Sip and Surf Inc., v. Arcadio Roselli and Anthony Roselli, Index No: 702766/2019. This matter is currently pending before the Court, and Arcadio has been directed to provide an accounting for I Wash to the other members, and to return all funds diverted from I Wash. See the Decision of Judge Livote, attached hereto as Exhibit B. To date, Arcadio has failed to provide an accounting or to return the improperly diverted funds, though he has been directed to do so by the Court. 7. In the interim, Gambino, Ordas and I have held a properly noticed meeting of shareholders of I Wash, which meeting was on notice to Arcadio, and we have voted to take 2 2 of 5 FILED: QUEENS COUNTY CLERK 10/04/2022 12:43 PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/04/2022 control of the management of I Wash. By Resolution we have ordered Arcadio to surrender all books, records and accounts. The notice and minutes of the duly noticed shareholder meeting are attached as Exhibit C. 8. I believe Arcadio subsequently filed this action to obfuscate his responsibility for mismanagement of, and for diverting assets in, I Wash. In response to Arcadio's Complaint in this action, Gambino, Ordas and I have additionally permitted Antonio's to sue Arcadio on its Defendants' own behalf for claims as asserted in the Answer and Counterclaims, which is attached hereto as Exhibit A. 9. Arcadio may be culpable for damages that may offset any damages to G. Rose, if any are owed. Upon information and belief, Arcadio's culpable conduct has caused damages in Defendants' excess of $1,000,000.00. (See Exhibit A, Verified Answer, at paragraph 41.) 10. As stated in my Verified Answer, I deny, or deny information to form a belief as to each and every one of Arcadio's allegations. See Exhibit A at ¶¶ 1 and 2. 11. There has been no discovery in this case. There have been no documents exchanged and no depositions have been taken. Furthermore, we are stillwaiting for Arcadio to turnover the books and records from I Wash and return the diverted funds. 12. I do not agree with Arcadio's version of what he believes has transpired with respect to Antonio's. Contrary to what Arcadio has asserted in his affidavit, (NYSCEF doc # 42) I believe that I am acting in the best interests of G Rose, and that an eviction of tenant Antonio's is not a prudent business judgment as it isrisky, costly and the leased premises will require extensive renovation. I believe this is not a sound business judgment in this post- especially pandemic economic climate. The business path that Arcadio seeks is not in the best interests of G Rose. 3 3 of 5 FILED: QUEENS COUNTY CLERK 10/04/2022 12:43 PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/04/2022 13. As most of the facts in this case are disputed, and there are many genuine issues to be tried, and for the reasons set forth by my attorney in his accompanying Affirmation, I believe Plaintiff's motion for summary judgment should be denied in its entirety, and for such and other further relief as this court deems just and proper. Sworn to before me this 1601 day of September, 2022 Anthony selli Notary Public MICHAEL LIEBLER NOTARY PUBLIC,STATE OF NEW YORK RegistrationNo. 02L16345888 QualifiedIn NassauCounty Commission ExpiresAugust 01,2024 4 of 5 FILED: QUEENS COUNTY CLERK 10/04/2022 12:43 PM INDEX NO. 711145/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/04/2022 CERTIFICATION PURSUANT TO UNIFORM RULE 202.8-b I,James G. Marsh, an attorney admitted to practice in the Courts of the State of New York, and a member of the firm O'Reilly, Marsh & Corteselli, P.C., attorneys for the defendants, A3T21, LLC D/B/A ANTONIO'S KITCHEN and ANTHONY ROSELLI, hereby certifies that the foregoing papers constituting DEFENDANT'S AFFIDAVIT IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (the "Document") complies with section 202.8-b of the Uniform Rules of the Supreme Court. According to the word count of the word-processing system used to prepare the Document, the total number of words contained in the Document is 835, which is in compliance with the limitations as set forth in section 202.8-b of the Uniform Rules of the Supreme Court. Dated: Mineola, New York September 16, 2022 O'REIL , MARSH & CORTESELLI P.C. By: J S G. MARSH, ESQ. A neys for Defendants - Roselli and Anthony 21, LLC d /a Antonio's Kitchen 2 Old Country Road, Second Floor Mineola, New York 11501 (516) 741-1818 5 5 of 5