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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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PLYMOUTH STREET LLC, derivatively on behalf of :
GOLD CAPITAL FUND LLC, :
: SUMMONS
Plaintiff, :
: Plaintiffs designate New York
-against- : County as the place for trial.
:
ABRAHAM SITT, DUMBO CAPITAL HOLDINGS LLC, :
and SIMMONS CAPITAL LLC, :
:
Defendants, :
-and- :
:
GOLD CAPITAL FUND LLC, :
:
Nominal Defendant. :
:
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TO THE ABOVE-NAMED DEFENDANTS:
DUMBO CAPITAL HOLDINGS LLC
1236 OCEAN PARKWAY, APT. 1A
BROOKLYN, NEW YORK 11230
ABRAHAM SITT
1236 OCEAN PARKWAY, APT. 1A
BROOKLYN, NEW YORK 11230
SIMMONS CAPITAL LLC
57 WEST 57TH ST., 4TH FL.
NEW YORK, NEW YORK 10019
YOU ARE HEREBY SUMMONED and required to serve upon the below-specified
attorneys for Plaintiff Plymouth Street LLC, at the address stated below, an answer to the
complaint in this action within twenty (20) days after the service of this summons (exclusive of
the day of service), or within thirty (30) days after the service of this summons (exclusive of the
day of service) if the summons is not personally delivered to you within the State of New York.
In the case of your failure to appear or answer within the time limitation stated above, a
judgment will be taken against you, by default, for the relief demanded in the annexed complaint.
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DATED: New York, New York SASSON LAW PLLC
June 14, 2023
By: /s/ Moshe Sasson
Moshe Sasson, Esq.
1350 Broadway, Suite 212
New York, New York 10018
212.949.7501 - phone
212.949.7500 - main office
msasson@sassonlawpllc.com
Attorneys for Plaintiff
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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PLYMOUTH STREET LLC, derivatively on behalf of :
GOLD CAPITAL FUND LLC, :
:
Plaintiff, : COMPLAINT
:
-against- : Jury Trial Demanded
:
ABRAHAM SITT, DUMBO CAPITAL HOLDINGS LLC, :
and SIMMONS CAPITAL LLC, :
:
Defendants, :
-and- :
:
GOLD CAPITAL FUND LLC, :
:
Nominal Defendant. :
:
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Plaintiff Plymouth Street LLC (“Plymouth”), derivatively on behalf of nominal defendant
Gold Capital Fund LLC (“Plaintiff” or the “Company”), by and through its attorneys, Sasson
Law PLLC, for its Complaint (the “Action”) against defendants Abraham Sitt (“Sitt”), Dumbo
Capital Holdings LLC (“Dumbo”) and Simmons Capital LLC (“Simmons”), alleges as follows:
NATURE OF THE ACTION
1. This Action seeks recompense for the myriad ways in which defendant Dumbo
and its sole member/manager, defendant Sitt, abused their positions as a 50% member and as an
officer of the Company by, inter alia, surreptitiously diverting substantial funds, assets, clients
and employees away from the Company to, and for the benefit of, other entities owned and/or
controlled by Sitt for the benefit of Sitt personally, including defendant Simmons.
2. As described further herein, Sitt and Dumbo purposefully concealed a pattern of
intentional wrongdoing—which included various breaches of the fiduciary duties that Sitt owed
to the Company—through which they stole Plaintiff’s core proprietary and trade secret
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information and misappropriated corporate funds, to the great detriment of the Company,
Plymouth, and Plymouth’s principal, Abraham Mishaan (“Mishaan”).
3. Unbeknownst to Plymouth and Mishaan, who operated as the other 50% member
and President of the Company and devoted all their energies to the Company, Sitt and Dumbo
intended to and did abuse their roles in the Company to set up a competing business that
siphoned the Company’s funds, assets, employees and clients, in blatant disregard of Sitt’s
fiduciary duties to the Company.
4. Defendants’ tortious conduct ultimately caused the Company to cease operations.
Accordingly, Plaintiff brings this Action to recoup its financial losses and to hold Defendants
accountable for their wrongful actions.
PARTIES
5. Plaintiff Plymouth Street LLC is a limited liability company organized under the
laws of, and authorized to do business in, the State of New York, with its principal place of
business located at 2485 Ocean Ave, Apt 3A, Brooklyn, New York 11229, and is a 50% member
of Plaintiff Gold Capital Fund LLC.
6. Defendant Dumbo Capital Holdings LLC is a limited liability company organized
under the laws of, and authorized to do business in, the State of New York, with its principal
place of business located at 1236 Ocean Parkway, Apt. 1A, Brooklyn, New York 11230 and is a
50% member of Plaintiff Gold Capital Fund LLC.
7. Defendant Simmons Capital LLC is a limited liability company organized under
the laws of, and authorized to do business in, the State of New York, with its principal place of
business located at 57 West 57th St., 4th Fl., New York, New York 10019.
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8. Defendant Abraham Sitt is a natural person residing in Brooklyn, New York,
who, upon information and belief, is the sole member and manager of defendants Dumbo Capital
Holdings LLC and Simmons Capital LLC.
9. Nominal defendant Gold Capital Fund LLC is a limited liability company
organized under the laws of, and authorized to do business in, the State of New York, with its
principal place of business located at 2485 Ocean Ave., Apt. 3A, Brooklyn, New York 11229.
JURISDICTION AND VENUE
10. The Court has original jurisdiction over this action pursuant to Article VI, § 7 of
the Constitution of the State of New York.
11. As a resident of New York, this Court has general jurisdiction over defendant Sitt
pursuant to N.Y. C.P.L.R. § 301.
12. As a New York limited liability company with its principal place of business
within the State, this Court has general jurisdiction over defendant Dumbo pursuant to N.Y.
C.P.L.R. § 301.
13. As a New York limited liability company with its principal place of business
within the State, this Court has general jurisdiction over defendant Simmons pursuant to N.Y.
C.P.L.R. § 301.
14. As a New York limited liability company with its principal place of business
within the State, this Court has general jurisdiction over nominal defendant Gold Capital Fund
LLC, pursuant to N.Y. C.P.L.R. § 301.
15. Venue in New York County is proper pursuant to N.Y. C.P.L.R. § 503.
DEMAND FUTILITY
16. Plaintiff has not made any demand upon Sitt, Dumbo or Simmons with respect to
remediating the wrongful conduct alleged in this Action because such demand would be a futile
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and useless act, as Sitt — the individual behind all the alleged breaches, malfeasance and theft
complained of herein — is the sole owner of, and controls, Dumbo and upon information and
belief, is an owner and manager of Simmons.
17. By virtue of his participation in, and approval of, the improper diversion of the
Company’s funds, income streams, assets and opportunities, Sitt is incapable of making
independent and disinterested decisions to institute and prosecute vigorously this Action against
himself, Dumbo or Simmons, the companies that he wholly owns.
18. Accordingly, Sitt and Dumbo are incapable of making independent and
disinterested decisions to institute and prosecute vigorously this Action against themselves.
19. Plaintiff, on the other hand, will adequately and fairly represent the interests of
the Company in enforcing and prosecuting its rights in this Action.
FACTUAL ALLEGATIONS
The Company’s Creation, Business Operations and Core Assets
20. The Company was founded by Mishaan on or about October 16, 2018, and was
wholly owned by him at that time. In the months following its incorporation, Mishaan devoted
substantially all his time and effort to setting up the Company as its President.
21. Mishaan created the Company for the purpose of providing merchant banking
services and cash advances to regional businesses through two distinct business segments.
22. First, the Company acted as a broker connecting businesses in need of liquidity
with lenders equipped to provide loans to qualified borrowers. In exchange, the Company would
earn a brokerage fee on all executed transactions between the brokered parties (the “Brokerage
Services Segment”). All such brokerage fees were paid into a single operating account (the
“Chase Account”).
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23. Second, the Company would raise its own capital from various parties and
syndicate its own cash advance loan portfolios for qualified borrowers. In exchange, the
Company would charge a commission on all such loans, with part of the commission going to
the representative who worked the lead on the deal and the remainder of the commission being
paid into the Chase Account (the “Syndicated Loan Segment”).
24. Sometime in or around early 2019, Sitt joined the Company through his wholly
owned vehicle, Dumbo. Upon joining the Company, Sitt took the title of Chief Executive
Officer, or CEO, of the Company.
25. Indeed, although Sitt would use the alias “Josh Gold” in his emails, he signed all
his emails as the CEO of the Company.
26. The Company thereafter divided supervision and management of its two business
segments among its two principals with Mishaan supervising and managing the Brokerage
Services Segment of the Company’s business, while Sitt supervised and managed the Syndicated
Loan Segment of the Company’s business.
27. Funds associated with the Company’s Syndicated Loan Segment business were
maintained in an account with NewCo Capital Group (“NewCo”), an alternative finance
company specializing in merchant cash advance bridge capital (the “NewCo Account”).
28. NewCo acted as a back office for the Company in connection with administering
the loans funded through the Syndicated Loan Segment business and, at times, also directly
invested in the Company’s Syndicated Loan Segment business.
29. NewCo charged fees for these services and, after taking its fees, would pay out
the remaining funds earned on the loans in the Syndicated Loan Segment business into the
Company’s Chase Account.
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30. Separately, the Company had an account with ADP for the purpose of
administering payroll and, upon information and belief, paying out investors in the Company’s
Syndicated Loan Business Segment (the “ADP Account”).
31. Although Mishaan, as President, and Sitt, as CEO, had equal managing rights
over the Company and both were authorized users on the Chase Account, Sitt exercised
exclusive operational control over the NewCo Account and the ADP Account.
32. Despite repeated demands, Sitt has withheld from Mishaan the records associated
with both the NewCo Account and the ADP Account, notwithstanding Mishaan’s legal
entitlement to such records.
33. Sitt directed ADP to make certain payroll payments to the Company’s workers
and independent contractors, including Sitt himself, who drew a regular monthly salary from the
Company via periodic 1099 payments.
34. Because Sitt has prevented Mishaan from obtaining the ADP payroll records,
Plaintiff is unable to reconcile the salary Sitt paid himself and others.
35. Upon information and belief, Sitt abused his role as a fiduciary to the Company
and paid himself, and others who were knowingly disloyal to the Company, more salary than he
or they were entitled to receive.
36. Over the years of its existence, the Company made substantial time commitments
and monetary investments in building out both its Brokerage Services Segment and Syndicated
Loan Business Segment.
37. Of crucial importance to both lines of the Company’s business was a compilation
of over 100,000 business leads to pursue, which was developed by the Company over several
years (the “Proprietary Leads”).
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38. All the information contained in the Proprietary Leads was initially purchased by
the Company at great expense using Company funds and then further developed through the use
of proprietary research and the individual and collective judgment of the Company and its
members and employees.
39. The Proprietary Leads were stored on a hard drive and the data was encrypted and
password protected.
40. No one other than Sitt and Mishaan had access to the Proprietary Leads.
41. Accordingly, absent an unauthorized disclosure or misappropriation, none of the
Company’s competitors could have acquired knowledge of the precise contours of the
Proprietary Leads.
42. The Proprietary Leads provided an ongoing competitive advantage to the
Company and derived independent economic value from not being generally known to the
Company’s competitors.
Defendants’ Tortious Conduct Ensues
43. Unbeknownst to Mishaan at the time, in or around late 2020, Sitt and Dumbo
began using the Company as Sitt’s own personal resource to divert funds, assets, customers and
employees away from the Company and, eventually, into Simmons, a previously undisclosed
entity Sitt created, owned and controlled, for the purposes of capturing 100% of said diverted
business to himself to the exclusion of the Company and its other 50% member, Plymouth, in
violation of Sitt’s fiduciary duties to the Company.
44. Defendants’ tortious conduct was carried out in a number of ways.
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45. First, while owing fiduciary duties to the Company, Sitt improperly transferred
over $1 million in assets and business opportunities from the Company to himself, Dumbo,
Simmons, and/or other companies owned and/or controlled by Sitt.
46. Second, Sitt misappropriated the Company’s core proprietary and trade secrets by
absconding with the hard drive that contained the Company’s Proprietary Leads.
47. Sitt subsequently engaged in unfair competition with the Company by utilizing
the Proprietary Leads to generate income for entities owned and/or controlled by Sitt personally,
to the exclusion of the Company and Plymouth.
48. Third, Sitt began using the Company’s credit card to purchase email leads that
rightfully should have been incorporated into the Company’s Proprietary Leads as the
Company’s property.
49. In actuality, however, Sitt was sending the Company’s leads to Dumbo, Simmons,
and/or other companies owned and/or controlled by Sitt, for the benefit of Sitt, Dumbo and/or
Simmons to the exclusion of the Company and Plymouth.
50. For example, on November 29, 2022, Sitt purchased business leads from “Dream
Data” using the Company’s credit card. Within hours of receiving the leads, Sitt transferred
multiple batches of said leads via email to the Company’s competitor, Simmons.
51. Fourth, Solomon Dahan (“Dahan”) — who was employed by Plaintiff, working at
Sitt’s direction and supervised by Sitt, and tasked with maintaining Plaintiff’s Syndicated Loan
Segment — orchestrated an illegal and fraudulent scheme by diverting the Company’s business
opportunities, income streams and assets to Sitt, Dumbo, Simmons and/or other entities owned or
controlled by Sitt.
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52. Unbeknownst to Mishaan, Sitt secretly diverted certain loan opportunities to
himself, Dumbo or other entities under Sitt’s control and would divert all commissions, interest,
fees, and income derived from such loans directly to himself, Dumbo or other entities under
Sitt’s control.
53. For example, on August 26, 2021, Sitt secretly funded American Eagle and
Construction with all commissions, interest, fees, and income derived from said loan diverted
directly to himself, Dumbo or other entities under Sitt’s control.
54. As another example, on February 10, 2021, Sitt secretly funded Appollo HP and
diverted all commissions, interest, fees, and income derived from said loan diverted directly to
himself, Dumbo or other entities under Sitt’s control.
55. Without access to the NewCo Account and ADP Account, it is impossible to
know exactly how much in commissions, interest, fees, and income derived from these loans
were unlawfully diverted to Sitt directly or indirectly.
56. In or around November 2022, to further conceal Dahan’s involvement in Sitt’s
campaign of tortious conduct directed against the Company, Plymouth and Mishaan, Dahan
advised Mishaan that he was leaving the Company stating that he intended to begin day trading
cypto currencies.
57. But that was a lie, as in fact Dahan began working for Sitt and Simmons in direct
competition to the Company.
58. Thereafter, Sitt continued to divert assets, income and business opportunities
away from the Company and into the hands of Simmons and/or other entities controlled by Sitt,
by surreptitiously sending them directly to Dahan and one of his partners at Simmons, Jacob
Setton.
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59. Upon information and belief, Sitt diverted further business opportunities away
from the Company and to Dumbo, Simmons and/or other entities controlled by Sitt by using the
Company’s good will, platforms and prior deal performance data and passing it all off as Sitt’s
own proprietary information and not the Company’s.
60. Sitt, in his capacity as CEO of the Company, insulated his and Dumbo’s improper
schemes from discovery by using alternative addresses on servers controlled by Sitt and by
denying Plymouth and Mishaan access to the financial records of the Company.
61. When Plaintiff inquired about Company finances, Sitt feinted, deferred, and
leveraged the trust placed in him as the CEO of the Company.
62. Knowing that permitting a full inspection of the Company and Dumbo’s books
and records would lay his schemes bare, Sitt, in a continued effort to conceal his improper
diversion of Plaintiff’s funds and assets, refused to allow Mishaan access to the Company’s
books and records, including to the ADP Account and NewCo Account, notwithstanding
Mishaan’s well-established statutory and common law rights to access those records.
63. Things came to a head in late December 2022, when Sitt took a series of actions
seeking to cover his tracks and insulate the Company’s financial records in the NewCo Account
and ADP Account.
64. More specifically, Sitt (using his alias of Josh Gold) changed the account name
and verification email of the Company’s ADP Account – which would track and show all
payments to investors and employees. Thus, Sitt changes the account name from Mishaan to Sitt
and changed the verification email to Dumbocapital@gmail.com.
65. Sitt also falsely represented himself to ADP asserting that he was the sole owner
of the Company and instructed ADP not to provide any information to anyone else purporting to
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represent the Company. ADP has since advised that they will only provide Sitt or Plymouth with
copies of the Company’s information pursuant to a subpoena.
66. Sitt further tried to cover his tracks by attempting to delete all of his sent emails
from his Company’s server (Josh@goldcapitalfund.com).
67. As a result of Defendants’ tortious conduct, among other things, beginning
January 1, 2023, Sitt no longer acted as CEO of the Company and Plaintiff began the process of
winding down its business.
68. During this time and to date, Sitt has continued to refuse to account for the
Company’s transactions and continues to withhold the Company’s financial information from
Plaintiff.
69. Instead of providing transparency, Sitt continued to engaged in delay tactics
through April 19, 2023, when, instead of providing the account details as requested, he finally
emailed a terse “report” of some of the missing syndicated loans, alleging that they were all in
default and all had lost money — which statistically was beyond improbable.
70. Notably, Sitt did not provide any documentary support for his terse “report,” nor
did he address all the missing syndicated loans. In short, the email raised more questions than it
answered.
71. All follow-up requests upon Sitt for actual documentation or additional
information regarding the missing syndicated loans have been either ignored or rebuffed.
FIRST CLAIM FOR RELIEF
Accounting
(as against Defendants Sitt and Dumbo)
72. Plaintiff repeats and re-alleges each and every allegation contained in the above
paragraphs as if fully set forth herein.
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73. As the Chief Executive Officer of the Company, Sitt owed Plaintiff fiduciary
duties, including the duties of utmost good faith, loyalty, honesty, and due care.
74. Sitt breached those fiduciary duties as set forth herein, including by, inter alia,
withholding the NewCo Account and the ADP Account information from Plaintiff, despite due
demand to produce the records.
75. Sitt further breached those fiduciary duties as set forth herein, including by, inter
alia, engaging in self-dealing and misappropriating the Company’s funds for his own personal
benefit.
76. Plaintiff has no adequate remedy at law.
77. As a result, Plaintiff is entitled to the equitable remedy of an accounting to
determine the value of Sitt’s and Dumbo’s misconduct and, upon completion of said accounting,
Plaintiff is entitled to recover from Sitt and Dumbo all damages that Plaintiff has suffered as a
result of their misconduct.
SECOND CLAIM FOR RELIEF
Breach of Fiduciary Duty
(as against defendant Sitt)
78. Plaintiff repeats and re-alleges each and every allegation contained in the above
paragraphs as if fully set forth herein.
79. As an officer of Plaintiff, Sitt has at all relevant times owed fiduciary obligations
to Plaintiff. By reason of their fiduciary relationship, Sitt owed Plaintiff the highest obligations
of good faith, fair dealing, loyalty, and due care.
80. Sitt’s conduct, as described herein, including but not limited to diverting those
assets, funds, opportunities, and income streams belonging to Plaintiff to himself (and/or to
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entities under his direct control), for his own personal enrichment, constitutes blatant breaches of
his fiduciary obligations to Plaintiff.
81. As a direct and proximate result of Sitt’s breaches of his fiduciary duties, Plaintiff
has been damaged in an amount to be determined at trial, but in no event less than $1 million.
THIRD CLAIM FOR RELIEF
Conversion
(as against all defendants)
82. Plaintiff repeats and re-alleges each and every allegation contained in the above
paragraphs as if fully set forth herein.
83. Plymouth is a member of Plaintiff and as such shares in the ownership of
Plaintiff.
84. The assets, funds, opportunities and income streams that Sitt, Dumbo and
Simmons diverted to themselves from Plaintiff, to which they were not, and are not, entitled, do
not belong to Sitt, Dumbo or Simmons but rather belong to Plaintiff.
85. Sitt, Dumbo and Simmons committed the wrongful acts described herein without
authority to do so.
86. Sitt, Dumbo and Simmons committed these acts intentionally and without
Plymouth’s knowledge and have interfered with Plaintiff’s right to the converted assets, funds,
opportunities and income streams that have not been returned despite due demand.
87. By reason of the foregoing, Plaintiff has been damaged in an amount to be
determined at trial, but in no event less than $1 million.
FOURTH CLAIM FOR RELIEF
Constructive Trust
(as against all defendants)
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88. Plaintiff repeats and re-alleges each and every allegation contained in the above
paragraphs as if fully set forth herein.
89. Sitt owes fiduciary duties to Plaintiff and made express and implied promises to
use Plaintiff’s funds for Plaintiff’s business purposes and not to divert such funds and business
opportunities for his, Dumbo’s or Simmons’s own personal enrichment.
90. Sitt, Dumbo and Simmons transferred and diverted assets, funds, opportunities or
income streams for their own personal enrichment.
91. Equity and good conscience do not permit Sitt, Dumbo and Simmons to retain
those assets, funds, opportunities or income streams, or the ill-gotten gains from those said
assets, funds, opportunities or income streams.
92. By reason of the foregoing, Plaintiff is entitled to have a constructive trust
imposed upon Sitt, Dumbo and Simmons to the extent they benefitted from the assets, funds,
opportunities or income streams they took from Plaintiff.
FIFTH CLAIM FOR RELIEF
Unjust Enrichment
(as against all defendants)
93. Plaintiff repeats and re-alleges each and every allegation contained in the above
paragraphs as if fully set forth herein.
94. As described herein, Sitt, Dumbo and Simmons have enriched themselves, and
continue to enrich themselves, by utilizing Plaintiff’s funds, assets and opportunities for their
own personal benefit, to the exclusion of Plaintiff and Plaintiff’s other member, Plymouth.
95. Sitt, Dumbo and Simmons also have been unjustly enriched to the extent they
used Plaintiff’s assets for other business opportunities, including for the benefit of business
entities that Sitt owns and/or controls.
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96. Sitt’s, Dumbo’s and Simmons’s unjust enrichment is at the expense of Plaintiff
and Plymouth.
97. The circumstances are such that in equity and good conscience, Sitt, Dumbo and
Simmons should not be permitted to keep, and should pay over to Plaintiff, any amounts that
they misappropriated.
SIXTH CLAIM FOR RELIEF
Faithless Servant
(as against defendant Sitt)
98. Plaintiff repeats and re-alleges each and every allegation contained in the above
paragraphs as if fully set forth herein.
99. As the Chief Executive Officer of the Company, Sitt owed Plaintiff fiduciary
duties, including the duties of utmost good faith, loyalty, honesty, and due care.
100. As set forth herein, Sitt breached his fiduciary duties to the Company by, inter
alia, embezzling Company funds, improperly competing with the Company, an usurping the
Company’s business opportunities for his own personal benefit.
101. Because Sitt breached his duty of loyalty to Plaintiff and continually acted as a
faithless agent, under the faithless servant doctrine, he must be required to disgorge all
compensation paid to him by the Company.
SEVENTH CLAIM FOR RELIEF
Unfair Competition – Misappropriation
(as against all defendants)
102. Plaintiff repeats and re-alleges each and every allegation contained in the above
paragraphs as if fully set forth herein.
103. Defendants misappropriated a commercial advantage belonging to Plaintiff —
namely, trade secrets and/or proprietary information in the form of the Proprietary Leads
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consisting of the Company’s core strategies for competing in both the Brokerage Services
Segment and the Syndicated Loan Segment businesses — by exploitation.
104. Defendants did so by willfully and maliciously breaching or inducing a breach of
Sitt’s common law duties of good faith, fair dealing, loyalty, and due care he owed to the
Company.
105. Specifically, Defendants misappropriated the aforementioned trade secrets and/or
proprietary information by absconding with the Proprietary Leads — which was the rightful
property of the Company only — and using them for their own personal benefit, to the exclusion
of Plaintiff and Plaintiff’s other member, Plymouth, in breach of Sitt’s fiduciary duties to the
Company.
106. Defendants acted in bad faith in misappropriating the Company’s commercial
advantage in that their only purpose in doing so was to divert assets and funds away from the
Company and to entities controlled by Sitt personally.
107. As a result of Defendants’ unfair competition and misappropriation of the
Company’s trade secrets and/or proprietary information, Plaintiff has suffered damages in an
amount to be proved at trial, but in no event less than $1 million.
108. Because Defendants’ unfair competition and misappropriation of the Company’s
trade secrets and/or proprietary information was willful and malicious, Plaintiff is entitled to an
award of punitive damages and attorney’s fees.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment against
defendants:
A. Awarding Plaintiff compensatory damages and/or restitution in an amount to be
determined at trial but in no event less than $1 million.
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B. Awarding Plaintiff costs, disbursements, and attorney’s fees in connection with
this Action;
C. Awarding Plaintiff punitive and exemplary damages in an amount to be
determined at trial;
D. Awarding Plaintiff pre- and post-judgment interest;
E. Directing defendants to provide Plaintiff with an accurate accounting of the
Company’s assets and cash flows;
F. Disgorging Sitt of all compensation paid to him by Plaintiff in an amount to be
determined at trial; and
G. Granting such other and further relief as this Court deems just and proper.
DATED: New York, New York
June 14, 2023
SASSON LAW PLLC
By: /s/ Moshe Sasson
Moshe Sasson, Esq.
1350 Broadway, Suite 212
New York, New York 10018
212.949.7501 - phone
212.949.7500 - main office
msasson@sassonlawpllc.com
Attorneys for Plaintiff
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Preview
06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x PLYMOUTH STREET LLC, derivatively on behalf of : GOLD CAPITAL FUND LLC, : : SUMMONS Plaintiff, : : Plaintiffs designate New York -against- : County as the place for trial. : ABRAHAM SITT, DUMBO CAPITAL HOLDINGS LLC, : and SIMMONS CAPITAL LLC, : : Defendants, : -and- : : GOLD CAPITAL FUND LLC, : : Nominal Defendant. : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x TO THE ABOVE-NAMED DEFENDANTS: DUMBO CAPITAL HOLDINGS LLC 1236 OCEAN PARKWAY, APT. 1A BROOKLYN, NEW YORK 11230 ABRAHAM SITT 1236 OCEAN PARKWAY, APT. 1A BROOKLYN, NEW YORK 11230 SIMMONS CAPITAL LLC 57 WEST 57TH ST., 4TH FL. NEW YORK, NEW YORK 10019 YOU ARE HEREBY SUMMONED and required to serve upon the below-specified attorneys for Plaintiff Plymouth Street LLC, at the address stated below, an answer to the complaint in this action within twenty (20) days after the service of this summons (exclusive of the day of service), or within thirty (30) days after the service of this summons (exclusive of the day of service) if the summons is not personally delivered to you within the State of New York. In the case of your failure to appear or answer within the time limitation stated above, a judgment will be taken against you, by default, for the relief demanded in the annexed complaint. 1 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 DATED: New York, New York SASSON LAW PLLC June 14, 2023 By: /s/ Moshe Sasson Moshe Sasson, Esq. 1350 Broadway, Suite 212 New York, New York 10018 212.949.7501 - phone 212.949.7500 - main office msasson@sassonlawpllc.com Attorneys for Plaintiff -2- 2 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x PLYMOUTH STREET LLC, derivatively on behalf of : GOLD CAPITAL FUND LLC, : : Plaintiff, : COMPLAINT : -against- : Jury Trial Demanded : ABRAHAM SITT, DUMBO CAPITAL HOLDINGS LLC, : and SIMMONS CAPITAL LLC, : : Defendants, : -and- : : GOLD CAPITAL FUND LLC, : : Nominal Defendant. : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Plaintiff Plymouth Street LLC (“Plymouth”), derivatively on behalf of nominal defendant Gold Capital Fund LLC (“Plaintiff” or the “Company”), by and through its attorneys, Sasson Law PLLC, for its Complaint (the “Action”) against defendants Abraham Sitt (“Sitt”), Dumbo Capital Holdings LLC (“Dumbo”) and Simmons Capital LLC (“Simmons”), alleges as follows: NATURE OF THE ACTION 1. This Action seeks recompense for the myriad ways in which defendant Dumbo and its sole member/manager, defendant Sitt, abused their positions as a 50% member and as an officer of the Company by, inter alia, surreptitiously diverting substantial funds, assets, clients and employees away from the Company to, and for the benefit of, other entities owned and/or controlled by Sitt for the benefit of Sitt personally, including defendant Simmons. 2. As described further herein, Sitt and Dumbo purposefully concealed a pattern of intentional wrongdoing—which included various breaches of the fiduciary duties that Sitt owed to the Company—through which they stole Plaintiff’s core proprietary and trade secret -3- 3 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 information and misappropriated corporate funds, to the great detriment of the Company, Plymouth, and Plymouth’s principal, Abraham Mishaan (“Mishaan”). 3. Unbeknownst to Plymouth and Mishaan, who operated as the other 50% member and President of the Company and devoted all their energies to the Company, Sitt and Dumbo intended to and did abuse their roles in the Company to set up a competing business that siphoned the Company’s funds, assets, employees and clients, in blatant disregard of Sitt’s fiduciary duties to the Company. 4. Defendants’ tortious conduct ultimately caused the Company to cease operations. Accordingly, Plaintiff brings this Action to recoup its financial losses and to hold Defendants accountable for their wrongful actions. PARTIES 5. Plaintiff Plymouth Street LLC is a limited liability company organized under the laws of, and authorized to do business in, the State of New York, with its principal place of business located at 2485 Ocean Ave, Apt 3A, Brooklyn, New York 11229, and is a 50% member of Plaintiff Gold Capital Fund LLC. 6. Defendant Dumbo Capital Holdings LLC is a limited liability company organized under the laws of, and authorized to do business in, the State of New York, with its principal place of business located at 1236 Ocean Parkway, Apt. 1A, Brooklyn, New York 11230 and is a 50% member of Plaintiff Gold Capital Fund LLC. 7. Defendant Simmons Capital LLC is a limited liability company organized under the laws of, and authorized to do business in, the State of New York, with its principal place of business located at 57 West 57th St., 4th Fl., New York, New York 10019. -4- 4 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 8. Defendant Abraham Sitt is a natural person residing in Brooklyn, New York, who, upon information and belief, is the sole member and manager of defendants Dumbo Capital Holdings LLC and Simmons Capital LLC. 9. Nominal defendant Gold Capital Fund LLC is a limited liability company organized under the laws of, and authorized to do business in, the State of New York, with its principal place of business located at 2485 Ocean Ave., Apt. 3A, Brooklyn, New York 11229. JURISDICTION AND VENUE 10. The Court has original jurisdiction over this action pursuant to Article VI, § 7 of the Constitution of the State of New York. 11. As a resident of New York, this Court has general jurisdiction over defendant Sitt pursuant to N.Y. C.P.L.R. § 301. 12. As a New York limited liability company with its principal place of business within the State, this Court has general jurisdiction over defendant Dumbo pursuant to N.Y. C.P.L.R. § 301. 13. As a New York limited liability company with its principal place of business within the State, this Court has general jurisdiction over defendant Simmons pursuant to N.Y. C.P.L.R. § 301. 14. As a New York limited liability company with its principal place of business within the State, this Court has general jurisdiction over nominal defendant Gold Capital Fund LLC, pursuant to N.Y. C.P.L.R. § 301. 15. Venue in New York County is proper pursuant to N.Y. C.P.L.R. § 503. DEMAND FUTILITY 16. Plaintiff has not made any demand upon Sitt, Dumbo or Simmons with respect to remediating the wrongful conduct alleged in this Action because such demand would be a futile -5- 5 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 and useless act, as Sitt — the individual behind all the alleged breaches, malfeasance and theft complained of herein — is the sole owner of, and controls, Dumbo and upon information and belief, is an owner and manager of Simmons. 17. By virtue of his participation in, and approval of, the improper diversion of the Company’s funds, income streams, assets and opportunities, Sitt is incapable of making independent and disinterested decisions to institute and prosecute vigorously this Action against himself, Dumbo or Simmons, the companies that he wholly owns. 18. Accordingly, Sitt and Dumbo are incapable of making independent and disinterested decisions to institute and prosecute vigorously this Action against themselves. 19. Plaintiff, on the other hand, will adequately and fairly represent the interests of the Company in enforcing and prosecuting its rights in this Action. FACTUAL ALLEGATIONS The Company’s Creation, Business Operations and Core Assets 20. The Company was founded by Mishaan on or about October 16, 2018, and was wholly owned by him at that time. In the months following its incorporation, Mishaan devoted substantially all his time and effort to setting up the Company as its President. 21. Mishaan created the Company for the purpose of providing merchant banking services and cash advances to regional businesses through two distinct business segments. 22. First, the Company acted as a broker connecting businesses in need of liquidity with lenders equipped to provide loans to qualified borrowers. In exchange, the Company would earn a brokerage fee on all executed transactions between the brokered parties (the “Brokerage Services Segment”). All such brokerage fees were paid into a single operating account (the “Chase Account”). -6- 6 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 23. Second, the Company would raise its own capital from various parties and syndicate its own cash advance loan portfolios for qualified borrowers. In exchange, the Company would charge a commission on all such loans, with part of the commission going to the representative who worked the lead on the deal and the remainder of the commission being paid into the Chase Account (the “Syndicated Loan Segment”). 24. Sometime in or around early 2019, Sitt joined the Company through his wholly owned vehicle, Dumbo. Upon joining the Company, Sitt took the title of Chief Executive Officer, or CEO, of the Company. 25. Indeed, although Sitt would use the alias “Josh Gold” in his emails, he signed all his emails as the CEO of the Company. 26. The Company thereafter divided supervision and management of its two business segments among its two principals with Mishaan supervising and managing the Brokerage Services Segment of the Company’s business, while Sitt supervised and managed the Syndicated Loan Segment of the Company’s business. 27. Funds associated with the Company’s Syndicated Loan Segment business were maintained in an account with NewCo Capital Group (“NewCo”), an alternative finance company specializing in merchant cash advance bridge capital (the “NewCo Account”). 28. NewCo acted as a back office for the Company in connection with administering the loans funded through the Syndicated Loan Segment business and, at times, also directly invested in the Company’s Syndicated Loan Segment business. 29. NewCo charged fees for these services and, after taking its fees, would pay out the remaining funds earned on the loans in the Syndicated Loan Segment business into the Company’s Chase Account. -7- 7 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 30. Separately, the Company had an account with ADP for the purpose of administering payroll and, upon information and belief, paying out investors in the Company’s Syndicated Loan Business Segment (the “ADP Account”). 31. Although Mishaan, as President, and Sitt, as CEO, had equal managing rights over the Company and both were authorized users on the Chase Account, Sitt exercised exclusive operational control over the NewCo Account and the ADP Account. 32. Despite repeated demands, Sitt has withheld from Mishaan the records associated with both the NewCo Account and the ADP Account, notwithstanding Mishaan’s legal entitlement to such records. 33. Sitt directed ADP to make certain payroll payments to the Company’s workers and independent contractors, including Sitt himself, who drew a regular monthly salary from the Company via periodic 1099 payments. 34. Because Sitt has prevented Mishaan from obtaining the ADP payroll records, Plaintiff is unable to reconcile the salary Sitt paid himself and others. 35. Upon information and belief, Sitt abused his role as a fiduciary to the Company and paid himself, and others who were knowingly disloyal to the Company, more salary than he or they were entitled to receive. 36. Over the years of its existence, the Company made substantial time commitments and monetary investments in building out both its Brokerage Services Segment and Syndicated Loan Business Segment. 37. Of crucial importance to both lines of the Company’s business was a compilation of over 100,000 business leads to pursue, which was developed by the Company over several years (the “Proprietary Leads”). -8- 8 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 38. All the information contained in the Proprietary Leads was initially purchased by the Company at great expense using Company funds and then further developed through the use of proprietary research and the individual and collective judgment of the Company and its members and employees. 39. The Proprietary Leads were stored on a hard drive and the data was encrypted and password protected. 40. No one other than Sitt and Mishaan had access to the Proprietary Leads. 41. Accordingly, absent an unauthorized disclosure or misappropriation, none of the Company’s competitors could have acquired knowledge of the precise contours of the Proprietary Leads. 42. The Proprietary Leads provided an ongoing competitive advantage to the Company and derived independent economic value from not being generally known to the Company’s competitors. Defendants’ Tortious Conduct Ensues 43. Unbeknownst to Mishaan at the time, in or around late 2020, Sitt and Dumbo began using the Company as Sitt’s own personal resource to divert funds, assets, customers and employees away from the Company and, eventually, into Simmons, a previously undisclosed entity Sitt created, owned and controlled, for the purposes of capturing 100% of said diverted business to himself to the exclusion of the Company and its other 50% member, Plymouth, in violation of Sitt’s fiduciary duties to the Company. 44. Defendants’ tortious conduct was carried out in a number of ways. -9- 9 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 45. First, while owing fiduciary duties to the Company, Sitt improperly transferred over $1 million in assets and business opportunities from the Company to himself, Dumbo, Simmons, and/or other companies owned and/or controlled by Sitt. 46. Second, Sitt misappropriated the Company’s core proprietary and trade secrets by absconding with the hard drive that contained the Company’s Proprietary Leads. 47. Sitt subsequently engaged in unfair competition with the Company by utilizing the Proprietary Leads to generate income for entities owned and/or controlled by Sitt personally, to the exclusion of the Company and Plymouth. 48. Third, Sitt began using the Company’s credit card to purchase email leads that rightfully should have been incorporated into the Company’s Proprietary Leads as the Company’s property. 49. In actuality, however, Sitt was sending the Company’s leads to Dumbo, Simmons, and/or other companies owned and/or controlled by Sitt, for the benefit of Sitt, Dumbo and/or Simmons to the exclusion of the Company and Plymouth. 50. For example, on November 29, 2022, Sitt purchased business leads from “Dream Data” using the Company’s credit card. Within hours of receiving the leads, Sitt transferred multiple batches of said leads via email to the Company’s competitor, Simmons. 51. Fourth, Solomon Dahan (“Dahan”) — who was employed by Plaintiff, working at Sitt’s direction and supervised by Sitt, and tasked with maintaining Plaintiff’s Syndicated Loan Segment — orchestrated an illegal and fraudulent scheme by diverting the Company’s business opportunities, income streams and assets to Sitt, Dumbo, Simmons and/or other entities owned or controlled by Sitt. -10- 10 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 52. Unbeknownst to Mishaan, Sitt secretly diverted certain loan opportunities to himself, Dumbo or other entities under Sitt’s control and would divert all commissions, interest, fees, and income derived from such loans directly to himself, Dumbo or other entities under Sitt’s control. 53. For example, on August 26, 2021, Sitt secretly funded American Eagle and Construction with all commissions, interest, fees, and income derived from said loan diverted directly to himself, Dumbo or other entities under Sitt’s control. 54. As another example, on February 10, 2021, Sitt secretly funded Appollo HP and diverted all commissions, interest, fees, and income derived from said loan diverted directly to himself, Dumbo or other entities under Sitt’s control. 55. Without access to the NewCo Account and ADP Account, it is impossible to know exactly how much in commissions, interest, fees, and income derived from these loans were unlawfully diverted to Sitt directly or indirectly. 56. In or around November 2022, to further conceal Dahan’s involvement in Sitt’s campaign of tortious conduct directed against the Company, Plymouth and Mishaan, Dahan advised Mishaan that he was leaving the Company stating that he intended to begin day trading cypto currencies. 57. But that was a lie, as in fact Dahan began working for Sitt and Simmons in direct competition to the Company. 58. Thereafter, Sitt continued to divert assets, income and business opportunities away from the Company and into the hands of Simmons and/or other entities controlled by Sitt, by surreptitiously sending them directly to Dahan and one of his partners at Simmons, Jacob Setton. -11- 11 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 59. Upon information and belief, Sitt diverted further business opportunities away from the Company and to Dumbo, Simmons and/or other entities controlled by Sitt by using the Company’s good will, platforms and prior deal performance data and passing it all off as Sitt’s own proprietary information and not the Company’s. 60. Sitt, in his capacity as CEO of the Company, insulated his and Dumbo’s improper schemes from discovery by using alternative addresses on servers controlled by Sitt and by denying Plymouth and Mishaan access to the financial records of the Company. 61. When Plaintiff inquired about Company finances, Sitt feinted, deferred, and leveraged the trust placed in him as the CEO of the Company. 62. Knowing that permitting a full inspection of the Company and Dumbo’s books and records would lay his schemes bare, Sitt, in a continued effort to conceal his improper diversion of Plaintiff’s funds and assets, refused to allow Mishaan access to the Company’s books and records, including to the ADP Account and NewCo Account, notwithstanding Mishaan’s well-established statutory and common law rights to access those records. 63. Things came to a head in late December 2022, when Sitt took a series of actions seeking to cover his tracks and insulate the Company’s financial records in the NewCo Account and ADP Account. 64. More specifically, Sitt (using his alias of Josh Gold) changed the account name and verification email of the Company’s ADP Account – which would track and show all payments to investors and employees. Thus, Sitt changes the account name from Mishaan to Sitt and changed the verification email to Dumbocapital@gmail.com. 65. Sitt also falsely represented himself to ADP asserting that he was the sole owner of the Company and instructed ADP not to provide any information to anyone else purporting to -12- 12 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 represent the Company. ADP has since advised that they will only provide Sitt or Plymouth with copies of the Company’s information pursuant to a subpoena. 66. Sitt further tried to cover his tracks by attempting to delete all of his sent emails from his Company’s server (Josh@goldcapitalfund.com). 67. As a result of Defendants’ tortious conduct, among other things, beginning January 1, 2023, Sitt no longer acted as CEO of the Company and Plaintiff began the process of winding down its business. 68. During this time and to date, Sitt has continued to refuse to account for the Company’s transactions and continues to withhold the Company’s financial information from Plaintiff. 69. Instead of providing transparency, Sitt continued to engaged in delay tactics through April 19, 2023, when, instead of providing the account details as requested, he finally emailed a terse “report” of some of the missing syndicated loans, alleging that they were all in default and all had lost money — which statistically was beyond improbable. 70. Notably, Sitt did not provide any documentary support for his terse “report,” nor did he address all the missing syndicated loans. In short, the email raised more questions than it answered. 71. All follow-up requests upon Sitt for actual documentation or additional information regarding the missing syndicated loans have been either ignored or rebuffed. FIRST CLAIM FOR RELIEF Accounting (as against Defendants Sitt and Dumbo) 72. Plaintiff repeats and re-alleges each and every allegation contained in the above paragraphs as if fully set forth herein. -13- 13 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 73. As the Chief Executive Officer of the Company, Sitt owed Plaintiff fiduciary duties, including the duties of utmost good faith, loyalty, honesty, and due care. 74. Sitt breached those fiduciary duties as set forth herein, including by, inter alia, withholding the NewCo Account and the ADP Account information from Plaintiff, despite due demand to produce the records. 75. Sitt further breached those fiduciary duties as set forth herein, including by, inter alia, engaging in self-dealing and misappropriating the Company’s funds for his own personal benefit. 76. Plaintiff has no adequate remedy at law. 77. As a result, Plaintiff is entitled to the equitable remedy of an accounting to determine the value of Sitt’s and Dumbo’s misconduct and, upon completion of said accounting, Plaintiff is entitled to recover from Sitt and Dumbo all damages that Plaintiff has suffered as a result of their misconduct. SECOND CLAIM FOR RELIEF Breach of Fiduciary Duty (as against defendant Sitt) 78. Plaintiff repeats and re-alleges each and every allegation contained in the above paragraphs as if fully set forth herein. 79. As an officer of Plaintiff, Sitt has at all relevant times owed fiduciary obligations to Plaintiff. By reason of their fiduciary relationship, Sitt owed Plaintiff the highest obligations of good faith, fair dealing, loyalty, and due care. 80. Sitt’s conduct, as described herein, including but not limited to diverting those assets, funds, opportunities, and income streams belonging to Plaintiff to himself (and/or to -14- 14 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 entities under his direct control), for his own personal enrichment, constitutes blatant breaches of his fiduciary obligations to Plaintiff. 81. As a direct and proximate result of Sitt’s breaches of his fiduciary duties, Plaintiff has been damaged in an amount to be determined at trial, but in no event less than $1 million. THIRD CLAIM FOR RELIEF Conversion (as against all defendants) 82. Plaintiff repeats and re-alleges each and every allegation contained in the above paragraphs as if fully set forth herein. 83. Plymouth is a member of Plaintiff and as such shares in the ownership of Plaintiff. 84. The assets, funds, opportunities and income streams that Sitt, Dumbo and Simmons diverted to themselves from Plaintiff, to which they were not, and are not, entitled, do not belong to Sitt, Dumbo or Simmons but rather belong to Plaintiff. 85. Sitt, Dumbo and Simmons committed the wrongful acts described herein without authority to do so. 86. Sitt, Dumbo and Simmons committed these acts intentionally and without Plymouth’s knowledge and have interfered with Plaintiff’s right to the converted assets, funds, opportunities and income streams that have not been returned despite due demand. 87. By reason of the foregoing, Plaintiff has been damaged in an amount to be determined at trial, but in no event less than $1 million. FOURTH CLAIM FOR RELIEF Constructive Trust (as against all defendants) -15- 15 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 88. Plaintiff repeats and re-alleges each and every allegation contained in the above paragraphs as if fully set forth herein. 89. Sitt owes fiduciary duties to Plaintiff and made express and implied promises to use Plaintiff’s funds for Plaintiff’s business purposes and not to divert such funds and business opportunities for his, Dumbo’s or Simmons’s own personal enrichment. 90. Sitt, Dumbo and Simmons transferred and diverted assets, funds, opportunities or income streams for their own personal enrichment. 91. Equity and good conscience do not permit Sitt, Dumbo and Simmons to retain those assets, funds, opportunities or income streams, or the ill-gotten gains from those said assets, funds, opportunities or income streams. 92. By reason of the foregoing, Plaintiff is entitled to have a constructive trust imposed upon Sitt, Dumbo and Simmons to the extent they benefitted from the assets, funds, opportunities or income streams they took from Plaintiff. FIFTH CLAIM FOR RELIEF Unjust Enrichment (as against all defendants) 93. Plaintiff repeats and re-alleges each and every allegation contained in the above paragraphs as if fully set forth herein. 94. As described herein, Sitt, Dumbo and Simmons have enriched themselves, and continue to enrich themselves, by utilizing Plaintiff’s funds, assets and opportunities for their own personal benefit, to the exclusion of Plaintiff and Plaintiff’s other member, Plymouth. 95. Sitt, Dumbo and Simmons also have been unjustly enriched to the extent they used Plaintiff’s assets for other business opportunities, including for the benefit of business entities that Sitt owns and/or controls. -16- 16 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 96. Sitt’s, Dumbo’s and Simmons’s unjust enrichment is at the expense of Plaintiff and Plymouth. 97. The circumstances are such that in equity and good conscience, Sitt, Dumbo and Simmons should not be permitted to keep, and should pay over to Plaintiff, any amounts that they misappropriated. SIXTH CLAIM FOR RELIEF Faithless Servant (as against defendant Sitt) 98. Plaintiff repeats and re-alleges each and every allegation contained in the above paragraphs as if fully set forth herein. 99. As the Chief Executive Officer of the Company, Sitt owed Plaintiff fiduciary duties, including the duties of utmost good faith, loyalty, honesty, and due care. 100. As set forth herein, Sitt breached his fiduciary duties to the Company by, inter alia, embezzling Company funds, improperly competing with the Company, an usurping the Company’s business opportunities for his own personal benefit. 101. Because Sitt breached his duty of loyalty to Plaintiff and continually acted as a faithless agent, under the faithless servant doctrine, he must be required to disgorge all compensation paid to him by the Company. SEVENTH CLAIM FOR RELIEF Unfair Competition – Misappropriation (as against all defendants) 102. Plaintiff repeats and re-alleges each and every allegation contained in the above paragraphs as if fully set forth herein. 103. Defendants misappropriated a commercial advantage belonging to Plaintiff — namely, trade secrets and/or proprietary information in the form of the Proprietary Leads -17- 17 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 consisting of the Company’s core strategies for competing in both the Brokerage Services Segment and the Syndicated Loan Segment businesses — by exploitation. 104. Defendants did so by willfully and maliciously breaching or inducing a breach of Sitt’s common law duties of good faith, fair dealing, loyalty, and due care he owed to the Company. 105. Specifically, Defendants misappropriated the aforementioned trade secrets and/or proprietary information by absconding with the Proprietary Leads — which was the rightful property of the Company only — and using them for their own personal benefit, to the exclusion of Plaintiff and Plaintiff’s other member, Plymouth, in breach of Sitt’s fiduciary duties to the Company. 106. Defendants acted in bad faith in misappropriating the Company’s commercial advantage in that their only purpose in doing so was to divert assets and funds away from the Company and to entities controlled by Sitt personally. 107. As a result of Defendants’ unfair competition and misappropriation of the Company’s trade secrets and/or proprietary information, Plaintiff has suffered damages in an amount to be proved at trial, but in no event less than $1 million. 108. Because Defendants’ unfair competition and misappropriation of the Company’s trade secrets and/or proprietary information was willful and malicious, Plaintiff is entitled to an award of punitive damages and attorney’s fees. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court enter judgment against defendants: A. Awarding Plaintiff compensatory damages and/or restitution in an amount to be determined at trial but in no event less than $1 million. -18- 18 of 19 06/14/2023 05:25 FILED: NEW YORK COUNTY CLERK 07/28/2023 12:26 PM INDEX NO. 652864/2023 1 NYSCEF DOC. NO. 18 06/14/2023 RECEIVED NYSCEF: 07/28/2023 B. Awarding Plaintiff costs, disbursements, and attorney’s fees in connection with this Action; C. Awarding Plaintiff punitive and exemplary damages in an amount to be determined at trial; D. Awarding Plaintiff pre- and post-judgment interest; E. Directing defendants to provide Plaintiff with an accurate accounting of the Company’s assets and cash flows; F. Disgorging Sitt of all compensation paid to him by Plaintiff in an amount to be determined at trial; and G. Granting such other and further relief as this Court deems just and proper. DATED: New York, New York June 14, 2023 SASSON LAW PLLC By: /s/ Moshe Sasson Moshe Sasson, Esq. 1350 Broadway, Suite 212 New York, New York 10018 212.949.7501 - phone 212.949.7500 - main office msasson@sassonlawpllc.com Attorneys for Plaintiff -19- 19 of 19