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FILED: NEW YORK COUNTY CLERK 05/24/2023 02:47 PM INDEX NO. 651815/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/24/2023
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,
Plaintiff, Index No. 651815/2023
(Motion Sequence #1)
-against-
AFFIDAVIT
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
STATE OF NEW YORK )
) ss:
COUNTY OF RICHMOND )
RAJENDRA AGGARWAL being duly sworn deposes and says:
1. I am the plaintiff, individually and as a member of343 WEST 46 LLC ("Plaintiff"),
herein.
2. I submit this affidavit in support of my application for the appointment of a
temporary receiver.
"A"
3. Attached hereto and annexed herein as Exhibit is the complaint filed on April
12, 2023.
4. I am the actual owner and holder of record of forty percent (40%) of the
membership units of 343 WEST 46 LLC ("46 LLC").
5. Defendant MICHA KALBO ("Kalbo") is the actual owner and holder of record of
thirty percent (30%) of the membership units of 46 LLC.
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6. Defendant MAURICE BEPABI ("Berabi") is the actual owner and holder of record
of thirty percent (30%) of the membership units of 46 LLC.
7. 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.
46th
8. 46 LLC owns certain real property located at 343 West Street, New York, New
York 10036 (the "Premises").
Mama"
9. 46 LLC leases a portion of the Premises to a night club named "Don't Tell
46"
and a related restaurant "Kitchen (collectively "Don't Tell Mama"), including the entire floor
above the night club and restaurant.
10. Don't Tell Mama is owned and operated by Kalbo and Berabi.
11. Pursuant to a lease agreement, Don't Tell Mama is to pay 46 LLC rent in the amount
of $23,000.00 per month with annual three percent (3%) annual increases.
12. Don't Tell Mama is currently at least $1,115,000.00 in arrears on its rent payments
to 46 LLC, a figure which does not include any late fees, interest, or the three percent (3%) annual
increases under the lease. Plaintiff is unaware of any rent payments that may have been made by
Don't Tell Mama.
13. Kalbo effectively controls both the lessee, Don't Tell Mama, and the lessor, 46
LLC.
14. I have reason to believe Kalbo has caused Don't Tell Mama not to pay rent to 46
LLC as required by the lease agreement, which is without justification and represents monies
improperly diverted from 46 LLC.
15. Kalbo has caused monies and assets belonging to 46 LLC to be diverted to himself
and others, to the injury of 46 LLC and me.
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16. I have contributed monies to 46 LLC to make payments to the bank and to cover
operational expenses of 46 LLC, while Kalbo has enjoyed the income from Don't Tell Mama
without paying rent to 46 LLC, even in good times for Don't Tell Mama.
17. I am worried that without the appointment of a temporary receiver, 46 LLC may
not be able to meet its on-going obligations.
18. I have demanded that Kalbo account for the lack of distributions and the income
and expenses generated from the Premises.
19. Absent the appointment of a temporary receiver to collect rents and account for the
income and expenses generated from the Premises, 46 LLC and I will suffer an irreparable loss as
there will be no way to calculate such monies due to 46 LLC and me in the face of the Kalbo's
suspicious and self-serving actions to date.
20. For the foregoing reasons, this Court should grant Plaintiff's application.
21. No prior application has been made for the relief sought herein.
'
©
RAJEN
^,Z
RA AGGARW
«« at
SWORN TO BEFORE ME THIS 16
DAY OF MAY 2023
NO ARY PUBLIC
NOTARY PUBLICI STATE OF NEW YONC
Registranon No. 02P16435908
Qualified in Richmond County
CornmissionExpires July 5, 20.J...fr.
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"A"
EXHIBIT
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INDEX
NYSCEF:
NO.
05/24/2023
651815/2023
FILED : NEW YORK COUNTY CLERK 04/12/2023 02:25 PlÈ
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,andasa
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 plaintiffs 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
Allón J. trdwford, sq.
Attornëÿs 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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NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023
To: 343 WEST 46 LLC
46th a
343 West FlOOr
New York, New York 10036
Micha Kalbo
46th n
343 West 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,
and in the right of 46 and through his Crawford · DeSantis
similarly situated, LLC, by attorneys,
Mancuso, LLP, as and for his complaint as against defendant MICHA KALBO ("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
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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.
46th
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 tohimselfand 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
andhas 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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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
Preview
FILED: NEW YORK COUNTY CLERK 05/24/2023 02:47 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/24/2023 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, Plaintiff, Index No. 651815/2023 (Motion Sequence #1) -against- AFFIDAVIT 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 STATE OF NEW YORK ) ) ss: COUNTY OF RICHMOND ) RAJENDRA AGGARWAL being duly sworn deposes and says: 1. I am the plaintiff, individually and as a member of343 WEST 46 LLC ("Plaintiff"), herein. 2. I submit this affidavit in support of my application for the appointment of a temporary receiver. "A" 3. Attached hereto and annexed herein as Exhibit is the complaint filed on April 12, 2023. 4. I am the actual owner and holder of record of forty percent (40%) of the membership units of 343 WEST 46 LLC ("46 LLC"). 5. Defendant MICHA KALBO ("Kalbo") is the actual owner and holder of record of thirty percent (30%) of the membership units of 46 LLC. 1 1 of 16 FILED: NEW YORK COUNTY CLERK 05/24/2023 02:47 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/24/2023 6. Defendant MAURICE BEPABI ("Berabi") is the actual owner and holder of record of thirty percent (30%) of the membership units of 46 LLC. 7. 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. 46th 8. 46 LLC owns certain real property located at 343 West Street, New York, New York 10036 (the "Premises"). Mama" 9. 46 LLC leases a portion of the Premises to a night club named "Don't Tell 46" and a related restaurant "Kitchen (collectively "Don't Tell Mama"), including the entire floor above the night club and restaurant. 10. Don't Tell Mama is owned and operated by Kalbo and Berabi. 11. Pursuant to a lease agreement, Don't Tell Mama is to pay 46 LLC rent in the amount of $23,000.00 per month with annual three percent (3%) annual increases. 12. Don't Tell Mama is currently at least $1,115,000.00 in arrears on its rent payments to 46 LLC, a figure which does not include any late fees, interest, or the three percent (3%) annual increases under the lease. Plaintiff is unaware of any rent payments that may have been made by Don't Tell Mama. 13. Kalbo effectively controls both the lessee, Don't Tell Mama, and the lessor, 46 LLC. 14. I have reason to believe Kalbo has caused Don't Tell Mama not to pay rent to 46 LLC as required by the lease agreement, which is without justification and represents monies improperly diverted from 46 LLC. 15. Kalbo has caused monies and assets belonging to 46 LLC to be diverted to himself and others, to the injury of 46 LLC and me. 2 2 of 16 FILED: NEW YORK COUNTY CLERK 05/24/2023 02:47 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/24/2023 16. I have contributed monies to 46 LLC to make payments to the bank and to cover operational expenses of 46 LLC, while Kalbo has enjoyed the income from Don't Tell Mama without paying rent to 46 LLC, even in good times for Don't Tell Mama. 17. I am worried that without the appointment of a temporary receiver, 46 LLC may not be able to meet its on-going obligations. 18. I have demanded that Kalbo account for the lack of distributions and the income and expenses generated from the Premises. 19. Absent the appointment of a temporary receiver to collect rents and account for the income and expenses generated from the Premises, 46 LLC and I will suffer an irreparable loss as there will be no way to calculate such monies due to 46 LLC and me in the face of the Kalbo's suspicious and self-serving actions to date. 20. For the foregoing reasons, this Court should grant Plaintiff's application. 21. No prior application has been made for the relief sought herein. ' © RAJEN ^,Z RA AGGARW «« at SWORN TO BEFORE ME THIS 16 DAY OF MAY 2023 NO ARY PUBLIC NOTARY PUBLICI STATE OF NEW YONC Registranon No. 02P16435908 Qualified in Richmond County CornmissionExpires July 5, 20.J...fr. 3 3 of 16 FILED: NEW YORK COUNTY CLERK 05/24/2023 02:47 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/24/2023 "A" EXHIBIT 4 of 16 FILED: NEW YORK COUNTY CLERK 05/24/2023 02:47 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 11 RECEIVED INDEX NYSCEF: NO. 05/24/2023 651815/2023 FILED : NEW YORK COUNTY CLERK 04/12/2023 02:25 PlÈ 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,andasa 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 plaintiffs 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 Allón J. trdwford, sq. Attornëÿs 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 of 12 5 of 16 FILED: NEW YORK COUNTY CLERK 05/24/2023 02:47 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/24/2023 INDEX NO. 651815/2023 FILED : NEW YORK COUNTY CLERK 04/12/2023 02:25 P NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2023 To: 343 WEST 46 LLC 46th a 343 West FlOOr New York, New York 10036 Micha Kalbo 46th n 343 West FlOOr New York, New York 10036 Maurice Berabi 5455 White Oak Avenue Encino, California 91316 2 2 of 12 6 of 16 FILED: NEW YORK COUNTY CLERK 05/24/2023 02:47 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/24/2023 INDEX NO. 651815/2023 FILED : NEW YORK COUNTY CLERK 04/12/2023 02:25 Pl! 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, and in the right of 46 and through his Crawford · DeSantis similarly situated, LLC, by attorneys, Mancuso, LLP, as and for his complaint as against defendant MICHA KALBO ("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 7 of 16 FILED: NEW YORK COUNTY CLERK 05/24/2023 02:47 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/24/2023 INDEX NO. 651815/2023 FILED : NEW YORK COUNTY CLERK 04/12/2023 02:25 PM| 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 8 of 16 FILED: NEW YORK COUNTY CLERK 05/24/2023 02:47 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/24/2023 INDEX NO. 651815/2023 FILED : NEW YORK COUNTY CLERK 04/12/2023 02:25 PM| 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. 46th 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 9 of 16 FILED: NEW YORK COUNTY CLERK 05/24/2023 02:47 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/24/2023 INDEX NO. 651815/2023 FILED : NEW YORK COUNTY CLERK 04/12/2023 02:25 PM| 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 tohimselfand 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 andhas 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 10 of 16 FILED: NEW YORK COUNTY CLERK 05/24/2023 02:47 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 11 RECEIVED INDEX NYSCEF: NO. 05/24/2023 651815/2023 FILED : NEW YORK COUNTY CLERK 04/12/2023 02:25 PM| 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