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FILED: NEW YORK COUNTY CLERK 04/12/2023 02:25 PM INDEX NO. 651815/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------x Index No.:
RAJENDRA AGGARWAL, individually, and as a
Member of 343 WEST 46 LLC,
SUMMONS
Plaintiff,
-against-
MICHA KALBO, individually and as a Member of
343 WEST 46 LLC, MAURICE BERABI,
individually and as a Member of 343 WEST 46 LLC,
and 343 WEST 46 LLC,
Defendants.
--___---------_______-------___________-____----_______--_________Ç
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED and required to serve upon plaintiff s attorney an answer
within twenty (20) days after the service of this summons, exclusive of the day of service, or
within thirty (30) days after service is complete if this summons is not personally delivered to
you within the State of New York.
In case of your failure to answer, judgment will be taken against you by default for the relief
demanded in the complaint.
The basis of the venue designated is the place of business of the Plaintiff.
Dated: Staten Island, New York
April 12, 2023
CRAWFORD·DESANTIS·MANCUSO LLP
All C d, sq.
Attorneys for Plaintiff
RAJENDRA AGGARWAL, individually
and as a Member of 343 WEST 46 LLC
900 South Avenue, Suite 204
Staten Island, New York 10314
718-273-9414
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To: 343 WEST 46 LLC
46th ist
343 West Street, Floor
New York, New York 10036
Micha Kalbo
46th ist
343 West Street, FlOOr
New York, New York 10036
Maurice Berabi
5455 White Oak Avenue
Encino, California 91316
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------_____________-------_______-----------______________________Ç
RAJENDRA AGGARWAL, individually, and as a Member
of 343 WEST 46 LLC,
COMPLAINT
Plaintiff,
Index Number:
-against-
MICHA KALBO, individually and as a Member of
343 WEST 46 LLC, MAURICE BERABI,
individually and as a Member of 343 WEST 46 LLC,
and 343 WEST 46 LLC,
Defendants.
--..._______________________________...____________-----__________Ç
Plaintiff RAJENDRA AGGARWAL, ("Plaintiff") individually and as a member of 343
WEST 46 LLC ("46 LLC") suing on behalf of himself and all other members of 46 LLC,
·
similarly situated, and in the right of 46 LLC, by and through his attorneys, Crawford DeSantis
- as and for his complaint as against defendant MICHA KALBO
Mancuse, LLP, ("Kalbo"),
individually and as a member of 46 LLC, MAURICE BERABI ("Berabi"), individually and as a
member of 46 LLC, and 46 LLC (collectively "Defendants"), hereby alleges as follows:
THE PARTIES
1. Plaintiff was and is a natural person who maintains a residence at 41 Wellington
Court, Apt. 2A, Staten Island, New York 10314.
2. Defendant 46 LLC is a limited liability company organized and existing under the
46th
laws of the State of New York, with its principal place of business at 343 West Street, New
York, New York 10036.
3. Plaintiff has been and still is the actual owner and holder of record of forty
percent (40%) of the membership units of 46 LLC.
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4. At all times relevant herein, upon information and belief, defendant Kalbo has
been and remains the actual owner and holder of record of thirty percent (30%) of the
membership units of 46 LLC.
5. At all times relevant herein, upon information and belief, defendant Berabi has
been and remains the actual owner and holder of record of thirty percent (30%) of the
membership units of 46 LLC.
6. Plaintiff is a member of 46 LLC.
7. Plaintiff brings this action as a member of 46 LLC on behalf of himself and all
other shareholders of 46 LLC similarly situated, and in the right of 46 LLC.
8. Upon information and belief, at all relevant times, defendant Kalbo was and is a
natural person residing in the State of New York, County of New York.
9. Upon information and belief, at all relevant times, defendant Berabi was and is a
natural person residing at 5455 White Oak Avenue, Encino, CA 91316.
10. Before commencing this action, Plaintiff did not make any demand upon 46 LLC
that it commence an action against the individual defendants Kalbo and Berabi for wrongful acts
committed because the individual defendants Kalbo and Berabi are the holders of sixty percent
(60%) of the membership interest in 46 LLC, and Kalbo is the manager thereof, such that it
would be futile and unavailing to demand that they initiate an action to be brought against
themselves.
JURISDICTION
11. This case arises out of business transacted in the City and State of New York,
County of New York.
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FACTS COMMON TO ALL CAUSES OF ACTION
12. 46 LLC has been in the business owning and managing real property since June
20, 2007, when it was formed by Kalbo, Berabi, and Plaintiff.
46d'
13. 46 LLC owns certain real property located at 343 West Street, New York,
New York 10036 (the "Premises").
14. Upon information and belief, 46 LLC leases a portion of the premises to a night
Mama" 46"
club named "Don't Tell and a related restaurant "Kitchen (collectively "Don't Tell
Mama").
15. Upon information and belief, defendants Kalbo and Berabi are the owners of
Don't Tell Mama.
16. Upon information and belief, Don't Tell Mama pursuant to a lease agreement is to
pay 46 LLC rent in the amount of $23,000.00 per month with annual three percent (3%)
increases.
17. Upon information and belief, defendant Kalbo has taken monies and rents from
46 LLC all while refusing to account to Plaintiff and to make distributions of rent and/or profits
to Plaintiff.
18. Upon information and belief, Kalbo has improperly paid himself distributions
from the rental monies earned by 46 LLC and/or has caused Don't Tell Mama not to pay rent to
36 LLC as required by the lease agreement, which is without justification and represents monies
improperly diverted from 46 LLC.
19. Upon information and belief, Kalbo without the knowledge and consent of
Plaintiff, continues to divert funds, assets, and other valuable items away from 46 LLC for his
personal use or benefit.
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20. Upon information and belief, Kalbo has caused monies and assets belonging to 46
LLC to be diverted to himself and others, to the injury of 46 LLC and Plaintiff.
AND FOR A FIRST CAUSE OF ACTION ON BEHALF OF 46 LLC
21. Plaintiff repeats, reiterates and realleges each and every allegation contained in
"1" "20"
paragraphs to as if set forth more fully at length herein.
22. Upon information and belief, Kalbo, for his own individual benefit and to the
detriment of 46 LLC, has engaged in a plan to compete and divert opportunities and monies from
46 LLC for the benefit of Kalbo and to the detriment of the Plaintiff.
23. In complete and total disregard of his fiduciary obligations to 46 LLC, Kalbo has
and continues to compete and divert company assets from 46 LLC.
24. As a result of Kalbo's acts, 46 LLC has lost business, income, goodwill, and value
which 46 LLC has nurtured and developed since its inception through expenditures of time, labor
and money.
25. Kalbo has also misappropriated cash and other valuable business assets of 46 LLC
and has used said assets for his own purposes without regard for the business of 46 LLC.
26. As a result of the foregoing, 46 LLC has been damaged in an amount to be
determined at trial but not less than $1,115,000.00.
AS AND FOR A SECOND CAUSE OF ACTION ON BEHALF OF PLAINTIFF
27. Plaintiff repeats, reiterates and realleges each and every allegation contained in
"1" "26"
paragraphs to as if set forth more fully at length herein.
28. In complete, utter and total disregard of Kalbo's fiduciary obligations to Plaintiff,
as manager and holder of the majority of the membership interest in 46 LLC, Kalbo has and
continues to complete and divert opportunities from 46 LLC.
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29. As a result of Kalbo's actions, Plaintiff is in jeopardy of losing the value-of his
investment of time and energy in 46 LLC as well as future profits and dividends.
30. Kalbo has also misappropriated cash and valuable business assets of 46 LLC and
has used and developed those assets for his sole benefit without Plaintiff's permission and in
derogation of Plaintiff's rights as a member of 46 LLC.
31. As a result of the foregoing, Plaintiff has been damaged in an amount to be
proven at trial but not less than $446,000.00.
AS AND FOR A THIRD CAUSE OF ACTION ON BEHALF OF 46 LLC
32. Plaintiff repeats, reiterates and realleges each and every allegation contained in
"1" "31"
paragraphs to as if set forth more fully at length herein.
33. As manager and holder of thirty percent (30%) of the membership interest in 46
LLC, Kalbo owed and continues to owe an undivided duty of loyalty and good faith to 46 LLC,
such that, among other things, Kalbo was required to at all times act in the best interests of 46
LLC.
34. As manager and holder of the majority of the membership interest in 46 LLC,
Kalbo owed 46 LLC a fiduciary duty to avoid competing with 46 LLC diverting for his own use
and/or benefit any company opportunities, assets and/or profits rightfully belonging to 46 LLC.
35. By virtue of his aforesaid actions, Kalbo has breached that duty.
36. By virtue of said breach of duty, Kalbo is liable to 46 LLC for a sum to be
determined at trial but not less than $1,115,000.00.
AS AND FOR A FOURTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF
37. Plaintiff repeats, reiterates and realleges each and every allegation contained in
"1" "36"
paragraphs to as if set forth more fully at length herein.
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..-38. As manager and holder of thirty percent (30%)mf the membership interest in 46
LLC, Kalbo owed an undivided duty of loyalty and good faith to Plaintiff, such that, among
other things, Kalbo was required to at all times act in the best interests of Plaintiff.
39. As manager and holder of thirty percent (30%) of the membership interest in 46
LLC, Kalbo owed Plaintiff a fiduciary duty to avoid competing with Kalbo and Plaintiff and
diverting for his own use and/or benefit any company opportunities, assets and/or profits
rightfully belonging to 46 LLC.
40. By virtue of his aforesaid actions, Kalbo has breached that duty.
41. By virtue of said breach of duty, Kalbo is liable to Plaintiff for a sum to be
determined at trial but not less than $446,000.00.
AS AND FOR A FIFTH CAUSE OF ACTION ON BEHALF OF 46 LLC
42. Plaintiff repeats, reiterates and realleges each and every allegation contained in
"1" "41"
paragraphs to as if set forth more fully at length herein.
43. Kalbo had a duty as manager and holder of thirty percent (30%) of the
membership interest in 46 LLC, to skillfully, diligently and carefully administer the affairs and
business of 46 LLC and to keep accurate and honest accounts of all of the business affairs and
transactions of 46 LLC, to safeguard the property and effects of 46 LLC to prevent said assets
from being diverted, stolen, squandered or wasted, and to otherwise faithfully and properly
perform his duties and obligations to 46 LLC.
44. Kalbo has failed in his duties and obligations imposed on him as manager and
holder of the majority of the membership interest in 46 LLC in that he did not provide accurate
and proper care and oversight to the business and affairs of 46 LLC in a good careful and diligent
manner using ordinary business judgment and skill; but to the contrary neglected those
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obligations, diverted and continues to divert company opportunities, and suffered and permitted
monies, property and effects of 46 LLC to be taken, wasted and squandered.
45. By reason of the foregoing, 46 LLC has been damaged in an amount to be proven
at trial but not less than $1,115,000.00.
AS AND FOR AN SIXTH CAUSE OF ACTION ON BEHALF OF 46 LLC
46. Plaintiff repeats, reiterates and realleges each and every allegation contained in
"1" "45"
paragraphs to as if set forth more fully at length herein.
47. Kalbo has taken money belonging to 46 LLC and converted it to his own personal
use.
48. As such, he is liable to return said monies to 46 LLC, in an amount to be
determined at trial but not less than $1,115,000.00.
49. By reason of the foregoing, 46 LLC has been damaged in an amount to be proven
at trial but not less than $1,l15,000.00.
AS AND FOR A SEVENTH CAUSE OF ACTION ON BEHALF OF 46 LLC
50. Plaintiff repeats, reiterates and realleges each and every allegation contained in
"1" "49"
paragraphs to as if set forth more fully at length herein.
51. To date, Kalbo has not, upon information and belief, in his capacity as manager
and holder of thirty percent (30%) of the membership interest in 46 LLC, maintained accurate
books and records of the operations of 46 LLC and has further operated 46 LLC such that profits
which are properly attributable to 46 LLC are instead being accrued by Kalbo.
52. To date, Kalbo has not, upon information and belief, in his capacity as manager
and holder of thirty percent (30%) of the membership interest in 46 LLC, accounted for the
monies due to 46 LLC from himself and 46 LLC.
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53. 46 LLC is entitled to- judgment that Kalbo provide an accurate
directing
accounting of the finances.
AS AND FOR AN EIGHTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF
54. Plaintiff repeats, reiterates and realleges each and every allegation contained in
"1"
paragraphs to "53"as if set forth more fully at length herein.
55. To date, Kalbo has not, upon information and belief, in his capacity as manager
and holder of thirty percent (30%) of the membership interest in 46 LLC, maintained accurate
books and records of the operations of 46 LLC and has further operated 46 LLC such that profits
which are properly attributable to 46 LLC are instead being accrued by Kalbo.
56. To date, Kalbo has not, upon information and belief, in his capacity as manager
and holder of thirty (30%) of the membership interest in 46 LLC, accounted for the monies due
to Plaintiff.
57. Plaintiff is entitled to judgment directing that Kalbo provide an accurate
accounting of the finances of 46 LLC.
AS AND FOR A NINTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF
58. Plaintiff repeats, reiterates and realleges each and every allegation contained in
"57"
paragraphs "1"to as if set forth more fully at length herein.
59. Kalbo has received the benefit of 46 LLC's business opportunities, income,
goodwill, assets and money, which have been wrongfully and illegally diverted and transferred
by Kalbo.
60. Kalbo has been wrongfully enriched at the detriment of 46 LLC.
61. Kalbo should reimburse all money, funds and assets in an amount to be
determined at trial, but not less than $1,115,000.00.
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62. Plaintiff is entitled to a and permanent -
Accordingly, temporary, preliminary,
injunction (i) directing Kalbo to, on behalf of 46 LLC, make distributions to Plaintiff of forty
percent (40%) of the profits of 46 LLC; (ii) enjoining Defendants from paying any and all sums
on behalf of 46 LLC except those necessary for the day to day operations of 46 LLC, including
but not limited to payroll, insurance, operating expenses and similar expenses; (iii) enjoining
Defendants from distributing or otherwise encumbering the profits of 46 LLC; and (iv) enjoining
Defendants from paying any management fee or other income to Defendants.
WHEREFORE, Plaintiff demands judgment:
(a) On the first cause of action judgment in favor of 46 LLC in an amount to
be determined at trial but not less than $1,115,000.00; and
(b) On the second cause of action, judgment in favor of Plaintiff in an amount
to be determined at trial but not less than $446,000.00; and
(c) On the third cause of action,
Preview
FILED: NEW YORK COUNTY CLERK 04/12/2023 02:25 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------x Index No.: RAJENDRA AGGARWAL, individually, and as a Member of 343 WEST 46 LLC, SUMMONS Plaintiff, -against- MICHA KALBO, individually and as a Member of 343 WEST 46 LLC, MAURICE BERABI, individually and as a Member of 343 WEST 46 LLC, and 343 WEST 46 LLC, Defendants. --___---------_______-------___________-____----_______--_________Ç TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED and required to serve upon plaintiff s attorney an answer within twenty (20) days after the service of this summons, exclusive of the day of service, or within thirty (30) days after service is complete if this summons is not personally delivered to you within the State of New York. In case of your failure to answer, judgment will be taken against you by default for the relief demanded in the complaint. The basis of the venue designated is the place of business of the Plaintiff. Dated: Staten Island, New York April 12, 2023 CRAWFORD·DESANTIS·MANCUSO LLP All C d, sq. Attorneys for Plaintiff RAJENDRA AGGARWAL, individually and as a Member of 343 WEST 46 LLC 900 South Avenue, Suite 204 Staten Island, New York 10314 718-273-9414 1 1 of 12 FILED: NEW YORK COUNTY CLERK 04/12/2023 02:25 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023 To: 343 WEST 46 LLC 46th ist 343 West Street, Floor New York, New York 10036 Micha Kalbo 46th ist 343 West Street, FlOOr New York, New York 10036 Maurice Berabi 5455 White Oak Avenue Encino, California 91316 2 2 of 12 FILED: NEW YORK COUNTY CLERK 04/12/2023 02:25 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------_____________-------_______-----------______________________Ç RAJENDRA AGGARWAL, individually, and as a Member of 343 WEST 46 LLC, COMPLAINT Plaintiff, Index Number: -against- MICHA KALBO, individually and as a Member of 343 WEST 46 LLC, MAURICE BERABI, individually and as a Member of 343 WEST 46 LLC, and 343 WEST 46 LLC, Defendants. --..._______________________________...____________-----__________Ç Plaintiff RAJENDRA AGGARWAL, ("Plaintiff") individually and as a member of 343 WEST 46 LLC ("46 LLC") suing on behalf of himself and all other members of 46 LLC, · similarly situated, and in the right of 46 LLC, by and through his attorneys, Crawford DeSantis - as and for his complaint as against defendant MICHA KALBO Mancuse, LLP, ("Kalbo"), individually and as a member of 46 LLC, MAURICE BERABI ("Berabi"), individually and as a member of 46 LLC, and 46 LLC (collectively "Defendants"), hereby alleges as follows: THE PARTIES 1. Plaintiff was and is a natural person who maintains a residence at 41 Wellington Court, Apt. 2A, Staten Island, New York 10314. 2. Defendant 46 LLC is a limited liability company organized and existing under the 46th laws of the State of New York, with its principal place of business at 343 West Street, New York, New York 10036. 3. Plaintiff has been and still is the actual owner and holder of record of forty percent (40%) of the membership units of 46 LLC. 1 3 of 12 FILED: NEW YORK COUNTY CLERK 04/12/2023 02:25 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023 4. At all times relevant herein, upon information and belief, defendant Kalbo has been and remains the actual owner and holder of record of thirty percent (30%) of the membership units of 46 LLC. 5. At all times relevant herein, upon information and belief, defendant Berabi has been and remains the actual owner and holder of record of thirty percent (30%) of the membership units of 46 LLC. 6. Plaintiff is a member of 46 LLC. 7. Plaintiff brings this action as a member of 46 LLC on behalf of himself and all other shareholders of 46 LLC similarly situated, and in the right of 46 LLC. 8. Upon information and belief, at all relevant times, defendant Kalbo was and is a natural person residing in the State of New York, County of New York. 9. Upon information and belief, at all relevant times, defendant Berabi was and is a natural person residing at 5455 White Oak Avenue, Encino, CA 91316. 10. Before commencing this action, Plaintiff did not make any demand upon 46 LLC that it commence an action against the individual defendants Kalbo and Berabi for wrongful acts committed because the individual defendants Kalbo and Berabi are the holders of sixty percent (60%) of the membership interest in 46 LLC, and Kalbo is the manager thereof, such that it would be futile and unavailing to demand that they initiate an action to be brought against themselves. JURISDICTION 11. This case arises out of business transacted in the City and State of New York, County of New York. 2 4 of 12 FILED: NEW YORK COUNTY CLERK 04/12/2023 02:25 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023 FACTS COMMON TO ALL CAUSES OF ACTION 12. 46 LLC has been in the business owning and managing real property since June 20, 2007, when it was formed by Kalbo, Berabi, and Plaintiff. 46d' 13. 46 LLC owns certain real property located at 343 West Street, New York, New York 10036 (the "Premises"). 14. Upon information and belief, 46 LLC leases a portion of the premises to a night Mama" 46" club named "Don't Tell and a related restaurant "Kitchen (collectively "Don't Tell Mama"). 15. Upon information and belief, defendants Kalbo and Berabi are the owners of Don't Tell Mama. 16. Upon information and belief, Don't Tell Mama pursuant to a lease agreement is to pay 46 LLC rent in the amount of $23,000.00 per month with annual three percent (3%) increases. 17. Upon information and belief, defendant Kalbo has taken monies and rents from 46 LLC all while refusing to account to Plaintiff and to make distributions of rent and/or profits to Plaintiff. 18. Upon information and belief, Kalbo has improperly paid himself distributions from the rental monies earned by 46 LLC and/or has caused Don't Tell Mama not to pay rent to 36 LLC as required by the lease agreement, which is without justification and represents monies improperly diverted from 46 LLC. 19. Upon information and belief, Kalbo without the knowledge and consent of Plaintiff, continues to divert funds, assets, and other valuable items away from 46 LLC for his personal use or benefit. 3 5 of 12 FILED: NEW YORK COUNTY CLERK 04/12/2023 02:25 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023 20. Upon information and belief, Kalbo has caused monies and assets belonging to 46 LLC to be diverted to himself and others, to the injury of 46 LLC and Plaintiff. AND FOR A FIRST CAUSE OF ACTION ON BEHALF OF 46 LLC 21. Plaintiff repeats, reiterates and realleges each and every allegation contained in "1" "20" paragraphs to as if set forth more fully at length herein. 22. Upon information and belief, Kalbo, for his own individual benefit and to the detriment of 46 LLC, has engaged in a plan to compete and divert opportunities and monies from 46 LLC for the benefit of Kalbo and to the detriment of the Plaintiff. 23. In complete and total disregard of his fiduciary obligations to 46 LLC, Kalbo has and continues to compete and divert company assets from 46 LLC. 24. As a result of Kalbo's acts, 46 LLC has lost business, income, goodwill, and value which 46 LLC has nurtured and developed since its inception through expenditures of time, labor and money. 25. Kalbo has also misappropriated cash and other valuable business assets of 46 LLC and has used said assets for his own purposes without regard for the business of 46 LLC. 26. As a result of the foregoing, 46 LLC has been damaged in an amount to be determined at trial but not less than $1,115,000.00. AS AND FOR A SECOND CAUSE OF ACTION ON BEHALF OF PLAINTIFF 27. Plaintiff repeats, reiterates and realleges each and every allegation contained in "1" "26" paragraphs to as if set forth more fully at length herein. 28. In complete, utter and total disregard of Kalbo's fiduciary obligations to Plaintiff, as manager and holder of the majority of the membership interest in 46 LLC, Kalbo has and continues to complete and divert opportunities from 46 LLC. 4 6 of 12 FILED: NEW YORK COUNTY CLERK 04/12/2023 02:25 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023 29. As a result of Kalbo's actions, Plaintiff is in jeopardy of losing the value-of his investment of time and energy in 46 LLC as well as future profits and dividends. 30. Kalbo has also misappropriated cash and valuable business assets of 46 LLC and has used and developed those assets for his sole benefit without Plaintiff's permission and in derogation of Plaintiff's rights as a member of 46 LLC. 31. As a result of the foregoing, Plaintiff has been damaged in an amount to be proven at trial but not less than $446,000.00. AS AND FOR A THIRD CAUSE OF ACTION ON BEHALF OF 46 LLC 32. Plaintiff repeats, reiterates and realleges each and every allegation contained in "1" "31" paragraphs to as if set forth more fully at length herein. 33. As manager and holder of thirty percent (30%) of the membership interest in 46 LLC, Kalbo owed and continues to owe an undivided duty of loyalty and good faith to 46 LLC, such that, among other things, Kalbo was required to at all times act in the best interests of 46 LLC. 34. As manager and holder of the majority of the membership interest in 46 LLC, Kalbo owed 46 LLC a fiduciary duty to avoid competing with 46 LLC diverting for his own use and/or benefit any company opportunities, assets and/or profits rightfully belonging to 46 LLC. 35. By virtue of his aforesaid actions, Kalbo has breached that duty. 36. By virtue of said breach of duty, Kalbo is liable to 46 LLC for a sum to be determined at trial but not less than $1,115,000.00. AS AND FOR A FOURTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF 37. Plaintiff repeats, reiterates and realleges each and every allegation contained in "1" "36" paragraphs to as if set forth more fully at length herein. 5 7 of 12 FILED: NEW YORK COUNTY CLERK 04/12/2023 02:25 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023 ..-38. As manager and holder of thirty percent (30%)mf the membership interest in 46 LLC, Kalbo owed an undivided duty of loyalty and good faith to Plaintiff, such that, among other things, Kalbo was required to at all times act in the best interests of Plaintiff. 39. As manager and holder of thirty percent (30%) of the membership interest in 46 LLC, Kalbo owed Plaintiff a fiduciary duty to avoid competing with Kalbo and Plaintiff and diverting for his own use and/or benefit any company opportunities, assets and/or profits rightfully belonging to 46 LLC. 40. By virtue of his aforesaid actions, Kalbo has breached that duty. 41. By virtue of said breach of duty, Kalbo is liable to Plaintiff for a sum to be determined at trial but not less than $446,000.00. AS AND FOR A FIFTH CAUSE OF ACTION ON BEHALF OF 46 LLC 42. Plaintiff repeats, reiterates and realleges each and every allegation contained in "1" "41" paragraphs to as if set forth more fully at length herein. 43. Kalbo had a duty as manager and holder of thirty percent (30%) of the membership interest in 46 LLC, to skillfully, diligently and carefully administer the affairs and business of 46 LLC and to keep accurate and honest accounts of all of the business affairs and transactions of 46 LLC, to safeguard the property and effects of 46 LLC to prevent said assets from being diverted, stolen, squandered or wasted, and to otherwise faithfully and properly perform his duties and obligations to 46 LLC. 44. Kalbo has failed in his duties and obligations imposed on him as manager and holder of the majority of the membership interest in 46 LLC in that he did not provide accurate and proper care and oversight to the business and affairs of 46 LLC in a good careful and diligent manner using ordinary business judgment and skill; but to the contrary neglected those 6 8 of 12 FILED: NEW YORK COUNTY CLERK 04/12/2023 02:25 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023 obligations, diverted and continues to divert company opportunities, and suffered and permitted monies, property and effects of 46 LLC to be taken, wasted and squandered. 45. By reason of the foregoing, 46 LLC has been damaged in an amount to be proven at trial but not less than $1,115,000.00. AS AND FOR AN SIXTH CAUSE OF ACTION ON BEHALF OF 46 LLC 46. Plaintiff repeats, reiterates and realleges each and every allegation contained in "1" "45" paragraphs to as if set forth more fully at length herein. 47. Kalbo has taken money belonging to 46 LLC and converted it to his own personal use. 48. As such, he is liable to return said monies to 46 LLC, in an amount to be determined at trial but not less than $1,115,000.00. 49. By reason of the foregoing, 46 LLC has been damaged in an amount to be proven at trial but not less than $1,l15,000.00. AS AND FOR A SEVENTH CAUSE OF ACTION ON BEHALF OF 46 LLC 50. Plaintiff repeats, reiterates and realleges each and every allegation contained in "1" "49" paragraphs to as if set forth more fully at length herein. 51. To date, Kalbo has not, upon information and belief, in his capacity as manager and holder of thirty percent (30%) of the membership interest in 46 LLC, maintained accurate books and records of the operations of 46 LLC and has further operated 46 LLC such that profits which are properly attributable to 46 LLC are instead being accrued by Kalbo. 52. To date, Kalbo has not, upon information and belief, in his capacity as manager and holder of thirty percent (30%) of the membership interest in 46 LLC, accounted for the monies due to 46 LLC from himself and 46 LLC. 7 9 of 12 FILED: NEW YORK COUNTY CLERK 04/12/2023 02:25 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023 53. 46 LLC is entitled to- judgment that Kalbo provide an accurate directing accounting of the finances. AS AND FOR AN EIGHTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF 54. Plaintiff repeats, reiterates and realleges each and every allegation contained in "1" paragraphs to "53"as if set forth more fully at length herein. 55. To date, Kalbo has not, upon information and belief, in his capacity as manager and holder of thirty percent (30%) of the membership interest in 46 LLC, maintained accurate books and records of the operations of 46 LLC and has further operated 46 LLC such that profits which are properly attributable to 46 LLC are instead being accrued by Kalbo. 56. To date, Kalbo has not, upon information and belief, in his capacity as manager and holder of thirty (30%) of the membership interest in 46 LLC, accounted for the monies due to Plaintiff. 57. Plaintiff is entitled to judgment directing that Kalbo provide an accurate accounting of the finances of 46 LLC. AS AND FOR A NINTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF 58. Plaintiff repeats, reiterates and realleges each and every allegation contained in "57" paragraphs "1"to as if set forth more fully at length herein. 59. Kalbo has received the benefit of 46 LLC's business opportunities, income, goodwill, assets and money, which have been wrongfully and illegally diverted and transferred by Kalbo. 60. Kalbo has been wrongfully enriched at the detriment of 46 LLC. 61. Kalbo should reimburse all money, funds and assets in an amount to be determined at trial, but not less than $1,115,000.00. 8 10 of 12 FILED: NEW YORK COUNTY CLERK 04/12/2023 02:25 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023 62. Plaintiff is entitled to a and permanent - Accordingly, temporary, preliminary, injunction (i) directing Kalbo to, on behalf of 46 LLC, make distributions to Plaintiff of forty percent (40%) of the profits of 46 LLC; (ii) enjoining Defendants from paying any and all sums on behalf of 46 LLC except those necessary for the day to day operations of 46 LLC, including but not limited to payroll, insurance, operating expenses and similar expenses; (iii) enjoining Defendants from distributing or otherwise encumbering the profits of 46 LLC; and (iv) enjoining Defendants from paying any management fee or other income to Defendants. WHEREFORE, Plaintiff demands judgment: (a) On the first cause of action judgment in favor of 46 LLC in an amount to be determined at trial but not less than $1,115,000.00; and (b) On the second cause of action, judgment in favor of Plaintiff in an amount to be determined at trial but not less than $446,000.00; and (c) On the third cause of action,