On April 12, 2023 a
Motion-Secondary
was filed
involving a dispute between
Rajendra Aggarwal, Individually, And As A Member Of 343 West 46 Llc,
and
343 West 46 Llc,
Maurice Berabi, Individually And As A Member Of 343 West 46 Llc,
Micha Kalbo, Individually And As A Member Of 343 West 46 Llc,
for Commercial - Business Entity
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 05/31/2023 04:42 PM INDEX NO. 651815/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/31/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
RAJENDRA AGGARWAL, individually and as a
Member of 343 WEST 46 LLC,
Index No. 651815/2023
Plaintiff,
-against-
AFFIRMATION IN SUPPORT
MICHA KALBO, individually and as a Member of OF MOTION TO COMPEL
343 WEST 46 LLC, MAURICE BERABI ARBITRATION AND STAY
individually and as a Member of 343 WEST 46 LLC, ACTION
and 343 WEST 46 LLC,
Defendants.
Kevin J. Nash, an attorney duly admitted to practice in the Courts of the State ofNew York,
pursuant to CPLR §2106 and under penalties of perjury affirms as follows:
1. I am a member of the firm of Goldberg Weprin Finkel Goldstein LLP, attorneys for
the defendants herein, Micha Kalbo (a/k/a Michael Kalbo), Maurice Berabi and 343 West 46 LLC
"Company,"
(the together with Micha Kalbo and Maurice Berabi, collectively, the "Defendants"),
and, as such, I am fully familiar with the facts and circumstances set forth herein based upon my
review of the pleadings and the Company's Operating Agreement defined below.
Defendants'
2. I respectfully submit this Affirmation in support of the motion
pursuant to CPLR §§ 7503(a) and 2201 to compel arbitration and stay this action in light of the
mandatory arbitration provisions set forth in the Company's operating agreement, dated July 11,
2007 (the "Operating Agreement"), a copy of which is annexed hereto as Exhibit A.
3. The action involves a dispute by and among the members of the Company relating
to the collection and disposition of funds. The plaintiff Rajendra Aggarwal ("Plaintiff"), who is a
Defendants'
minority member, has asserted generic allegations relating to the purported breach of
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FILED: NEW YORK COUNTY CLERK 05/31/2023 04:42 PM INDEX NO. 651815/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/31/2023
fiduciary duties and related claims in violation of the Operating Agreement. A copy of Plaintiff's
complaint is annexed hereto as Exhibit B.
4. While the allegations are highly disputed, any internal dispute between the
members is subject to mandatory arbitration pursuant to the Company's Operating Agreement, and
specifically section 18 thereof, which provides:
Any dispute, controversy or claim arising out of or in connection with
this Agreement or any breach or alleged breach hereof shall, upon the
request of any party involved, be submitted to, and settled by, arbitration
in the city in which is the principal place of business of the Limited
Liability Company is then located, pursuant to the commercial
arbitration rules then in effect of the American Arbitration Association
(or at any other time or place or under any other form of arbitration
mutually acceptable to the parties involved). Any award rendered shall
be final and conclusive upon the parties and a judgment thereon may be
entered in a court of competent jurisdiction. The expenses of the
arbitration shall be borne equally by the parties to the arbitration,
provided that each party shall pay for and bear the cost of its own
attorneys'
experts, evidence and fees, except that in the discretion of the
attorneys'
arbitrator any awarded may include the fees of a party if the
arbitrator expressly determines that the party against whom such award
is entered has caused the dispute, controversy or claim to be submitted
to arbitration as a dilatory tactic or in bad faith.
5. The allegations contained in the Complaint relate to alleged violations of the
Operating Agreement concerning the mismanagement of the Company and purported breaches of
fiduciary responsibility associated therewith. As such, the arbitration provisions are directly
implicated, requiring that Plaintiff proceed before the American Arbitration Association consistent
with section 18 quoted above.
6. Accordingly, Plaintiff should be compelled to proceed with arbitration, and this
Action should be stayed in the interim.
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FILED: NEW YORK COUNTY CLERK 05/31/2023 04:42 PM INDEX NO. 651815/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/31/2023
7. Contemporaneously herewith, Defendants have served the attached notice of intent
Defendants'
to arbitrate. A copy of the Notice of Intention to Arbitrate is annexed hereto as Exhibit
C.
WHEREFORE, Defendants respectfully request that an Order be entered compelling
arbitration and staying the Action to give effect to the mandatory arbitration provision under the
Company's Operating Agreement.
New York, New York
May 31, 2023
Kevin J. Nash, Esq.
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Document Filed Date
May 31, 2023
Case Filing Date
April 12, 2023
Category
Commercial - Business Entity
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FILED: NEW YORK COUNTY CLERK 05/31/2023 04:42 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/31/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK RAJENDRA AGGARWAL, individually and as a Member of 343 WEST 46 LLC, Index No. 651815/2023 Plaintiff, -against- AFFIRMATION IN SUPPORT MICHA KALBO, individually and as a Member of OF MOTION TO COMPEL 343 WEST 46 LLC, MAURICE BERABI ARBITRATION AND STAY individually and as a Member of 343 WEST 46 LLC, ACTION and 343 WEST 46 LLC, Defendants. Kevin J. Nash, an attorney duly admitted to practice in the Courts of the State ofNew York, pursuant to CPLR §2106 and under penalties of perjury affirms as follows: 1. I am a member of the firm of Goldberg Weprin Finkel Goldstein LLP, attorneys for the defendants herein, Micha Kalbo (a/k/a Michael Kalbo), Maurice Berabi and 343 West 46 LLC "Company," (the together with Micha Kalbo and Maurice Berabi, collectively, the "Defendants"), and, as such, I am fully familiar with the facts and circumstances set forth herein based upon my review of the pleadings and the Company's Operating Agreement defined below. Defendants' 2. I respectfully submit this Affirmation in support of the motion pursuant to CPLR §§ 7503(a) and 2201 to compel arbitration and stay this action in light of the mandatory arbitration provisions set forth in the Company's operating agreement, dated July 11, 2007 (the "Operating Agreement"), a copy of which is annexed hereto as Exhibit A. 3. The action involves a dispute by and among the members of the Company relating to the collection and disposition of funds. The plaintiff Rajendra Aggarwal ("Plaintiff"), who is a Defendants' minority member, has asserted generic allegations relating to the purported breach of 1 1 of 3 FILED: NEW YORK COUNTY CLERK 05/31/2023 04:42 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/31/2023 fiduciary duties and related claims in violation of the Operating Agreement. A copy of Plaintiff's complaint is annexed hereto as Exhibit B. 4. While the allegations are highly disputed, any internal dispute between the members is subject to mandatory arbitration pursuant to the Company's Operating Agreement, and specifically section 18 thereof, which provides: Any dispute, controversy or claim arising out of or in connection with this Agreement or any breach or alleged breach hereof shall, upon the request of any party involved, be submitted to, and settled by, arbitration in the city in which is the principal place of business of the Limited Liability Company is then located, pursuant to the commercial arbitration rules then in effect of the American Arbitration Association (or at any other time or place or under any other form of arbitration mutually acceptable to the parties involved). Any award rendered shall be final and conclusive upon the parties and a judgment thereon may be entered in a court of competent jurisdiction. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the cost of its own attorneys' experts, evidence and fees, except that in the discretion of the attorneys' arbitrator any awarded may include the fees of a party if the arbitrator expressly determines that the party against whom such award is entered has caused the dispute, controversy or claim to be submitted to arbitration as a dilatory tactic or in bad faith. 5. The allegations contained in the Complaint relate to alleged violations of the Operating Agreement concerning the mismanagement of the Company and purported breaches of fiduciary responsibility associated therewith. As such, the arbitration provisions are directly implicated, requiring that Plaintiff proceed before the American Arbitration Association consistent with section 18 quoted above. 6. Accordingly, Plaintiff should be compelled to proceed with arbitration, and this Action should be stayed in the interim. 2 2 of 3 FILED: NEW YORK COUNTY CLERK 05/31/2023 04:42 PM INDEX NO. 651815/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/31/2023 7. Contemporaneously herewith, Defendants have served the attached notice of intent Defendants' to arbitrate. A copy of the Notice of Intention to Arbitrate is annexed hereto as Exhibit C. WHEREFORE, Defendants respectfully request that an Order be entered compelling arbitration and staying the Action to give effect to the mandatory arbitration provision under the Company's Operating Agreement. New York, New York May 31, 2023 Kevin J. Nash, Esq. 3 3 of 3