Preview
FILED: CLINTON COUNTY CLERK 06/06/2023 05:05 PM INDEX NO. 2023-00023160
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023
SUPREME COURT
STATE OF NEW YORK COUNTY OF CLINTON
ELIZABETH BAZZANO
Plaintiff, AMENDED COMPLAINT
-against- Index No. 2023-00023160
BAZZBACH PROPERTIES, LLC, CORY
WEIDENBACH, JAMES BAZZANO, WILLIAM
BAZZANO, and BRENT BAZZANO
Defendants.
... .
Plaintiff, Elizabeth Bazzano, by and through the undersigned attorneys, hereby sues
Defendants, Bazzbach Properties, LLC, Cory Weidenbach, James Bazzano, William Bazzano, and
Brent Bazzano (hereinafter "Defendants"), and alleges as follows:
1. Plaintiff, Elizabeth Bazzano, is an individual residing in the Town of Ausable, County of
Clinton, State of New York.
2. Defendant, Bazzbach Properties, LLC, is a Limited Liability Company duly authorized to
do business in the State of New York.
3. Defendant, Bazzbach Properties, LLC, has its principal place of business as 96 Furnace
Point Lane, Westport, NY 12993.
4. Defendant, Cory Weidenbach, is an individual residing in the County of Essex, State of
New York.
5. Defendant, James Bazzano, is an individual residing in the County of Passaic, State of New
Jersey.
6. Defendant, William Bazzano, is an individual residing in the County of Essex, State of
New York.
7. Defendant, Brent Bazzano, is an individual residing in the County of Collier, State of
Florida.
8. The events giving rise to the allegations within this Complaint occurred within the
territorial district of this court.
STAFFORI) " OWENS
MURNAME-
KELLEllER·
Mil ER.MEYER
&ZEDICK.
PLLC
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9. On or about October 2, 2022, Plaintiff withdrew as a member of Bazzbach Properties, LLC
in accordance with Article 3, Section 10 of the entity's Operating Agreement, dated August
18, 2020, (attached hereto as Exhibit A) which was agreed to by the Defendants.
10. As a result of Plaintiff's withdrawal as a member, a dispute has arisen with regard to the
payment for Plaintiff's 10% Membership Interest following her withdrawal.
11. Pursuant to Article III, Sections 10 and 11 of the Operating Agreement copy attached as
Exhibit A.
12. Sections 10 and 11 are set forth below:
Article III, Section 10: A member may withdraw as a member of this Company with the
vote or written consent of a majority in interest of the remaining members (other than the
member who proposed to withdraw as a member). If such consent is not given, a member
may withdraw upon not less than six months prior written notice to this Company, provided
such withdrawal does not breach this Operating Agreement, the New York Limited
Liability Company Law or any other contractual obligation between such proposed
withdrawing member and this Company or its other members. Should such a breach occur,
then the withdrawing member may be liable for damages as a result thereof. Absent other
agreement of the remaining members, such withdrawing member will still be liable for his
proportional share of Company debts and entitled to their proportional share of Company
profits, if any, until his Membership Interest is legally terminated.
STAFFOR1b OWENS
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Article III, Section 11: In the event of a dispute regarding the valuation of any certain
Membership Interest, the member whose Membership Interest is in dispute and the
remaining members will each select an appraiser to perform an appraisal of that
Membership Interest. The appraisal will consider the company's assets, debts, income,
expenses and such other factors as deemed relevant by the appraiser. The presumptive
value of that Membership Interest will be the average of the two appraisals. Should either
disputing party reject the average of the two appraisals as an acceptable valuation of that
Membership Interest, then the matter may be submitted to a court of competent
jurisdiction for a determination of the valuation.
13. On or about September 25, 2022, Plaintiff obtained an appraisal through Champlain Valley
Appraisal Services, PLLC, in the amount of $2,685,000.00.
14. Defendants received a copy of Plaintiff's appraisal and did not object in any way to said
appraisal in writing.
15. On or about February 6, 2023, Defendants obtained an appraisal through North Country
Management, LTD, in the amount of $1,100,000.00.
16. The average of these two appraisals is $1,892,500.00, resulting in a presumptive value of
Plaintiff's Membership Interest at $189,250.00.
STAFFORD " OWENS
MURNAME"
KE - MItEA
LLEMER - MEYER LLC
&ZEDICI,P
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17. On or about, February 23, 2023, the remaining members holding majority of ownership of
the entity, provided a final offer to Plaintiff in the amount of $95,000.00 as value of the
Plaintiff's Membership Interest.
18. At no time did Defendants raise any issue as to the need for a business valuation and appear
to have waived such requirement.
19. The Defendants consistently advised Plaintiff that they had no obligation to purchase her
Membership Interest even after her compliance with the Operating Agreement.
20. On or about, March 1, 2023, Plaintiff provided written correspondence to Defendants
Defendants'
rejecting the proposed purchase price, as it did not represent the fair market
value/fair value of the Membership Interest, nor does it comply with the requirements of
the Operating Agreement. (Attached hereto as Exhibit B).
21. Defendants did not respond to Plaintiff's correspondence (See Exhibit B hereto).
STAFFORD " OWENS
MURNANE" - MII_ER"
KELLEllER MEYER
&ZEDICK,PLLC
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24*
22. On the of May, 2023, Mr. Assaf having previous appeared to demand a complaint,
wrote to Plaintiffs stating "the Operating Agreement of Bazzbach Properties does not
Properties,"
require my clients to purchase your client's interest in Bazzbach and again on
1" out."
the of June, 2023 stating "the Agreement does not require that my clients buy her
(Attached hereto as Exhibit C & Exhibit D).
23. It is clear from Mr. Assaf's letters that the Defendants continue taking the position that
neither the Operating Agreement nor §509 of the LLC Law require the Defendants to
purchase the Plaintiff's Membership Interest at its Fair Value.
24. On or about June 1, 2023, Defendants through correspondence from their counsel
reasserted that they are not required to purchase the Plaintiff's Membership Interest under
the Operating Agreement. (See Exhibit D hereto).
25. This assertion by the Defendants is incorrect as to the obligation to buy out Plaintiff, as
NY CLS LLC § 509 clearly provides that unless otherwise stated in the Operating
STAFFORD " OWENS
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Agreement, a withdrawing member of a limited liability company is entitled to receive,
within a reasonable time after withdrawal, the fair value of her Membership Interest as of
the date of the withdrawal.
26. Where the Operating Agreement is silent, NY CLS LLC § 509 applies so that Plaintiff is
entitled to receive the fair value of her Membership Interest as of October 2, 2022 within
a reasonable amount of time.
27. Any reasonable reading of Section 11 of the Operating Agreement would require the
conclusion that the only purpose is to purchase the Membership Interest in dispute at the
valuation price.
28. By reason of the foregoing, Defendants have anticipatorily breached the Operating
Agreement in refusing to fulfill their contractual obligations and/or to comply with NY
CLS LLC § 509.
STAFFORD " OWENS
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29. By reason of the foregoing, Plaintiff is entitled to a judgment against Defendants directing
them to comply with the Operating Agreement and to pay Plaintiff the Fair Value of her
Membership Interest.
AS AND FOR A SECOND CAUSE OF ACTION
30. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through
29 of this complaint as though fully set forth at length herein.
31. Defendants continuously claim and assert that they are not required to buy Plaintiff's
Membership Interest at fair value under the Operating Agreement.
32. Plaintiff asserts that the Defendants are incorrect and Bazzbach Properties, LLC is
responsible to pay the fair value of Plaintiff's Membership Interest.
33. As a result of the foregoing, there is a justiciable controversy between the parties.
34. Plaintiff lacks an adequate remedy at law.
STAFFORD " OWENS
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35. By reason of the foregoing, Plaintiff is entitled to a declaration as to the compliance of
Defendants'
the Operating Agreement and obligations in the distribution upon
withdrawal process.
AS AND FOR A THIRD CAUSE OF ACTION
36. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through
35 of this complaint as though fully set forth at length herein.
37. Prior to Plaintiff's withdrawal as a member, Defendants failed to provide adequate and
timely notice of meetings to Plaintiff, in accordance with Article IV of the Operating
Agreement.
38. Defendants have failed to properly pass purported resolutions, vote or conduct other
actions.
Defendants'
39. refusal to recognize for months Plaintiff's date of withdrawal and consistently
asserted false statements related to such date.
STAFFORD " OWENS
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40. Plaintiff has been harassed by the Defendants with false allegations and threatening
statements in an attempt to induce the Plaintiff to change her position as to compliance
with the Operating Agreement and to sell her Membership Interest.
41. Upon information and belief, Plaintiff, Elizabeth Bazzano, has incurred cost and expenses
throughout the pendency of this matter, due to Defendant's actions, currently totaling the
amount of $21,000.00 as the result of the Defendant's failure to abide by the Operating
Agreement.
WHEREFORE, Plaintiff, Elizabeth Bazzano demands judgment against Defendants
Bazzbach Properties, LLC, Cory Weidenbach, James Bazzano, William Bazzano, and Brent
Bazzano as follows:
Defendants'
1. A declaration on behalf of the Plaintiff that have anticipatorily
Defendants'
breached the Operating Agreement and that must comply with the
Operating Agreement and purchase Plaintiff's Membership Interest at it's Fair
Value.
STAFFORD"OWENS
MURNANE"
KELLEMER"Mil
'EA-METER
SZEDICK,PLLC
9 of 11
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Defendants'
2. A declaratory judgment finding that the must comply with the
Operating Agreement and purchase Plaintiff's Membership Interest at its Fair
Value; and
3. Reasonable attorney's fees; and
4. Costs and disbursements; and
5. Such other and further relief as the Court deems just and proper.
[The remainder of this space is intentionally left blank. Signature page to
follow.]
STAFFORE " OWENS
MURNANE·
KELLEMER-
MIl R"MEVER
&ZEDICK.PLLC
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- n
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023
DATED: June 6, 2023 STAFFORD, OWENS, MURNANE, KELLEHER,
MILLER, R & ZEDICK, PLLC
Wi•liam L. Owens, Esq.
Attorneys for Plaintiff
One Cumberland Avenue
P.O. Box 2947
Plattsburgh, New York 12901
(518) 561-4400
(518) 561-4848 [Fax No.]
STAFFORE " OWENS
- KELLEHER
MURNANE " Mill R"MEYER
&ZEDICK,
PLIC
11 of 11
Preview
FILED: CLINTON COUNTY CLERK 06/06/2023 05:05 PM INDEX NO. 2023-00023160 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023 SUPREME COURT STATE OF NEW YORK COUNTY OF CLINTON ELIZABETH BAZZANO Plaintiff, AMENDED COMPLAINT -against- Index No. 2023-00023160 BAZZBACH PROPERTIES, LLC, CORY WEIDENBACH, JAMES BAZZANO, WILLIAM BAZZANO, and BRENT BAZZANO Defendants. ... . Plaintiff, Elizabeth Bazzano, by and through the undersigned attorneys, hereby sues Defendants, Bazzbach Properties, LLC, Cory Weidenbach, James Bazzano, William Bazzano, and Brent Bazzano (hereinafter "Defendants"), and alleges as follows: 1. Plaintiff, Elizabeth Bazzano, is an individual residing in the Town of Ausable, County of Clinton, State of New York. 2. Defendant, Bazzbach Properties, LLC, is a Limited Liability Company duly authorized to do business in the State of New York. 3. Defendant, Bazzbach Properties, LLC, has its principal place of business as 96 Furnace Point Lane, Westport, NY 12993. 4. Defendant, Cory Weidenbach, is an individual residing in the County of Essex, State of New York. 5. Defendant, James Bazzano, is an individual residing in the County of Passaic, State of New Jersey. 6. Defendant, William Bazzano, is an individual residing in the County of Essex, State of New York. 7. Defendant, Brent Bazzano, is an individual residing in the County of Collier, State of Florida. 8. The events giving rise to the allegations within this Complaint occurred within the territorial district of this court. STAFFORI) " OWENS MURNAME- KELLEllER· Mil ER.MEYER &ZEDICK. PLLC 1 of 11 FILED: CLINTON COUNTY CLERK 06/06/2023 05:05 PM INDEX NO. 2023-00023160 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023 9. On or about October 2, 2022, Plaintiff withdrew as a member of Bazzbach Properties, LLC in accordance with Article 3, Section 10 of the entity's Operating Agreement, dated August 18, 2020, (attached hereto as Exhibit A) which was agreed to by the Defendants. 10. As a result of Plaintiff's withdrawal as a member, a dispute has arisen with regard to the payment for Plaintiff's 10% Membership Interest following her withdrawal. 11. Pursuant to Article III, Sections 10 and 11 of the Operating Agreement copy attached as Exhibit A. 12. Sections 10 and 11 are set forth below: Article III, Section 10: A member may withdraw as a member of this Company with the vote or written consent of a majority in interest of the remaining members (other than the member who proposed to withdraw as a member). If such consent is not given, a member may withdraw upon not less than six months prior written notice to this Company, provided such withdrawal does not breach this Operating Agreement, the New York Limited Liability Company Law or any other contractual obligation between such proposed withdrawing member and this Company or its other members. Should such a breach occur, then the withdrawing member may be liable for damages as a result thereof. Absent other agreement of the remaining members, such withdrawing member will still be liable for his proportional share of Company debts and entitled to their proportional share of Company profits, if any, until his Membership Interest is legally terminated. STAFFOR1b OWENS 2 of 11 FILED: CLINTON COUNTY CLERK 06/06/2023 05:05 PM INDEX NO. 2023-00023160 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023 Article III, Section 11: In the event of a dispute regarding the valuation of any certain Membership Interest, the member whose Membership Interest is in dispute and the remaining members will each select an appraiser to perform an appraisal of that Membership Interest. The appraisal will consider the company's assets, debts, income, expenses and such other factors as deemed relevant by the appraiser. The presumptive value of that Membership Interest will be the average of the two appraisals. Should either disputing party reject the average of the two appraisals as an acceptable valuation of that Membership Interest, then the matter may be submitted to a court of competent jurisdiction for a determination of the valuation. 13. On or about September 25, 2022, Plaintiff obtained an appraisal through Champlain Valley Appraisal Services, PLLC, in the amount of $2,685,000.00. 14. Defendants received a copy of Plaintiff's appraisal and did not object in any way to said appraisal in writing. 15. On or about February 6, 2023, Defendants obtained an appraisal through North Country Management, LTD, in the amount of $1,100,000.00. 16. The average of these two appraisals is $1,892,500.00, resulting in a presumptive value of Plaintiff's Membership Interest at $189,250.00. STAFFORD " OWENS MURNAME" KE - MItEA LLEMER - MEYER LLC &ZEDICI,P 3 of 11 FILED: CLINTON COUNTY CLERK 06/06/2023 05:05 PM INDEX NO. 2023-00023160 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023 17. On or about, February 23, 2023, the remaining members holding majority of ownership of the entity, provided a final offer to Plaintiff in the amount of $95,000.00 as value of the Plaintiff's Membership Interest. 18. At no time did Defendants raise any issue as to the need for a business valuation and appear to have waived such requirement. 19. The Defendants consistently advised Plaintiff that they had no obligation to purchase her Membership Interest even after her compliance with the Operating Agreement. 20. On or about, March 1, 2023, Plaintiff provided written correspondence to Defendants Defendants' rejecting the proposed purchase price, as it did not represent the fair market value/fair value of the Membership Interest, nor does it comply with the requirements of the Operating Agreement. (Attached hereto as Exhibit B). 21. Defendants did not respond to Plaintiff's correspondence (See Exhibit B hereto). STAFFORD " OWENS MURNANE" - MII_ER" KELLEllER MEYER &ZEDICK,PLLC 4 of 11 FILED: CLINTON COUNTY CLERK 06/06/2023 05:05 PM INDEX NO. 2023-00023160 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023 24* 22. On the of May, 2023, Mr. Assaf having previous appeared to demand a complaint, wrote to Plaintiffs stating "the Operating Agreement of Bazzbach Properties does not Properties," require my clients to purchase your client's interest in Bazzbach and again on 1" out." the of June, 2023 stating "the Agreement does not require that my clients buy her (Attached hereto as Exhibit C & Exhibit D). 23. It is clear from Mr. Assaf's letters that the Defendants continue taking the position that neither the Operating Agreement nor §509 of the LLC Law require the Defendants to purchase the Plaintiff's Membership Interest at its Fair Value. 24. On or about June 1, 2023, Defendants through correspondence from their counsel reasserted that they are not required to purchase the Plaintiff's Membership Interest under the Operating Agreement. (See Exhibit D hereto). 25. This assertion by the Defendants is incorrect as to the obligation to buy out Plaintiff, as NY CLS LLC § 509 clearly provides that unless otherwise stated in the Operating STAFFORD " OWENS 5 of 11 FILED: CLINTON COUNTY CLERK 06/06/2023 05:05 PM INDEX NO. 2023-00023160 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023 Agreement, a withdrawing member of a limited liability company is entitled to receive, within a reasonable time after withdrawal, the fair value of her Membership Interest as of the date of the withdrawal. 26. Where the Operating Agreement is silent, NY CLS LLC § 509 applies so that Plaintiff is entitled to receive the fair value of her Membership Interest as of October 2, 2022 within a reasonable amount of time. 27. Any reasonable reading of Section 11 of the Operating Agreement would require the conclusion that the only purpose is to purchase the Membership Interest in dispute at the valuation price. 28. By reason of the foregoing, Defendants have anticipatorily breached the Operating Agreement in refusing to fulfill their contractual obligations and/or to comply with NY CLS LLC § 509. STAFFORD " OWENS 6 of 11 FILED: CLINTON COUNTY CLERK 06/06/2023 05:05 PM INDEX NO. 2023-00023160 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023 29. By reason of the foregoing, Plaintiff is entitled to a judgment against Defendants directing them to comply with the Operating Agreement and to pay Plaintiff the Fair Value of her Membership Interest. AS AND FOR A SECOND CAUSE OF ACTION 30. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 29 of this complaint as though fully set forth at length herein. 31. Defendants continuously claim and assert that they are not required to buy Plaintiff's Membership Interest at fair value under the Operating Agreement. 32. Plaintiff asserts that the Defendants are incorrect and Bazzbach Properties, LLC is responsible to pay the fair value of Plaintiff's Membership Interest. 33. As a result of the foregoing, there is a justiciable controversy between the parties. 34. Plaintiff lacks an adequate remedy at law. STAFFORD " OWENS 7 of 11 FILED: CLINTON COUNTY CLERK 06/06/2023 05:05 PM INDEX NO. 2023-00023160 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023 35. By reason of the foregoing, Plaintiff is entitled to a declaration as to the compliance of Defendants' the Operating Agreement and obligations in the distribution upon withdrawal process. AS AND FOR A THIRD CAUSE OF ACTION 36. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 35 of this complaint as though fully set forth at length herein. 37. Prior to Plaintiff's withdrawal as a member, Defendants failed to provide adequate and timely notice of meetings to Plaintiff, in accordance with Article IV of the Operating Agreement. 38. Defendants have failed to properly pass purported resolutions, vote or conduct other actions. Defendants' 39. refusal to recognize for months Plaintiff's date of withdrawal and consistently asserted false statements related to such date. STAFFORD " OWENS 8 of 11 FILED: CLINTON COUNTY CLERK 06/06/2023 05:05 PM INDEX NO. 2023-00023160 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023 40. Plaintiff has been harassed by the Defendants with false allegations and threatening statements in an attempt to induce the Plaintiff to change her position as to compliance with the Operating Agreement and to sell her Membership Interest. 41. Upon information and belief, Plaintiff, Elizabeth Bazzano, has incurred cost and expenses throughout the pendency of this matter, due to Defendant's actions, currently totaling the amount of $21,000.00 as the result of the Defendant's failure to abide by the Operating Agreement. WHEREFORE, Plaintiff, Elizabeth Bazzano demands judgment against Defendants Bazzbach Properties, LLC, Cory Weidenbach, James Bazzano, William Bazzano, and Brent Bazzano as follows: Defendants' 1. A declaration on behalf of the Plaintiff that have anticipatorily Defendants' breached the Operating Agreement and that must comply with the Operating Agreement and purchase Plaintiff's Membership Interest at it's Fair Value. STAFFORD"OWENS MURNANE" KELLEMER"Mil 'EA-METER SZEDICK,PLLC 9 of 11 FILED: CLINTON COUNTY CLERK 06/06/2023 05:05 PM INDEX NO. 2023-00023160 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023 Defendants' 2. A declaratory judgment finding that the must comply with the Operating Agreement and purchase Plaintiff's Membership Interest at its Fair Value; and 3. Reasonable attorney's fees; and 4. Costs and disbursements; and 5. Such other and further relief as the Court deems just and proper. [The remainder of this space is intentionally left blank. Signature page to follow.] STAFFORE " OWENS MURNANE· KELLEMER- MIl R"MEVER &ZEDICK.PLLC 10 of 11 FILED: CLINTON COUNTY CLERK 06/06/2023 05:05 PM INDEX NO. 2023-00023160 - n NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2023 DATED: June 6, 2023 STAFFORD, OWENS, MURNANE, KELLEHER, MILLER, R & ZEDICK, PLLC Wi•liam L. Owens, Esq. Attorneys for Plaintiff One Cumberland Avenue P.O. Box 2947 Plattsburgh, New York 12901 (518) 561-4400 (518) 561-4848 [Fax No.] STAFFORE " OWENS - KELLEHER MURNANE " Mill R"MEYER &ZEDICK, PLIC 11 of 11