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FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONONDAGA
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OSI RESTAURANT PARTNERS, LLC, et al.
Plaintiffs, Index No. 2016-EF-2494
-against-
IPT, LLC d/b/a FM FACILITY ANSWER AND
MAINTENANCE, COUNTER-CLAIMS
Defendant.
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Defendant IPT, LLC d/b/a FM Facility Maintenance (“FM”), through its undersigned
attorneys, as and for its answer to plaintiffs Bonefish Grill of Florida, LLC, Bonefish Grill, LLC,
Outback/Flemings, LLC, Outback Steakhouse of Florida, LLC, and Carrabba’s Italian Grill,
LLC’s (“OSI Companies”), and OSI Restaurant Partners, LLC’s (“OSI” and, together with the
OSI Companies, “Plaintiffs”) complaint in this action (“Complaint”), states as follows:
THE PARTIES
1. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 1 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs.
2. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 2 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs.
3. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 3 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs.
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4. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 4 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs.
5. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 5 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs.
6. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 6 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs.
7. FM admits that it is a Connecticut limited liability company, but denies that its
principal place of business is in Hartford, Connecticut.
JURISDICTION AND VENUE
8. Paragraph 8 of the Complaint contains conclusions of law that require no
response. To the extent a response is required, FM admits the allegations contained in paragraph
8 of the Complaint to the extent that the “Master Services Agreement” includes language which
reads that the “state courts of the State of New York” shall have “exclusive jurisdiction” over
any “suit, action or other proceeding related to or arising out of” such agreement, but FM denies
the remaining allegations contained in paragraph 8 of the Complaint.
FACTUAL BACKGROUND
9. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 9 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs.
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10. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 10 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs.
11. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 11 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs.
12. FM admits the allegations contained in paragraph 12 of the Complaint.
13. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 13 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs.
14. FM admits that it entered into a series of agreements with Plaintiffs as referenced
in paragraph 14 of the Complaint and respectfully refers the Court to those agreements for their
contents, the terms of which speak for themselves and which preclude the necessity of any
further response. To the extent any further response is required, FM lacks knowledge or
information sufficient to form a belief as to the truth or accuracy of the remaining allegations
contained in paragraph 14 of the Complaint and, accordingly, denies the same and leaves
Plaintiffs to their proofs.
15. FM admits that it entered into a certain Master Customer Agreement as referenced
in paragraph 15 of the Complaint and respectfully refers the Court to that agreement for its
contents, the terms of which speak for themselves and which preclude the necessity of any
further response. FM further admits that the document attached to the Complaint as Exhibit A is
a true and correct copy of such Master Customer Agreement. To the extent paragraph 15 can be
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read to suggest that FM and the OSI Companies were the sole signatories to such agreement, FM
denies such allegation.
16. FM admits that it entered into a certain Master Customer Agreement, as well as
several amendments thereto, all as referenced in paragraph 16 of the Complaint and respectfully
refers the Court to that agreement and those amendments for their contents, the terms of which
speak for themselves and which preclude the necessity of any further response. FM further
admits that the documents attached to the Complaint as Exhibit B are true and correct copies of
such Master Customer Agreement and related amendments. To the extent paragraph 16 can be
read to suggest that FM and the OSI Companies were the sole signatories to such agreement and
amendments, FM denies such allegation.
17. FM admits that it entered into a certain Master Services Agreement as referenced
in paragraph 17 of the Complaint and respectfully refers the Court to that agreement for its
contents, the terms of which speak for themselves and which preclude the necessity of any
further response. FM further admits that the document attached to the Complaint as Exhibit C is
a true and correct copy of such Master Services Agreement.
18. FM denies the allegations contained in paragraph 18 of the Complaint as phrased,
and further respectfully refers the Court to those agreements for their contents, the terms of
which speak for themselves and which preclude the necessity of any further response.
19. FM denies the allegations contained in paragraph 19 of the Complaint as phrased,
and further respectfully refers the Court to those agreements for their contents, the terms of
which speak for themselves and which preclude the necessity of any further response.
20. As to Paragraph 20 of the Complaint, FM denies the allegations that it
overcharged Plaintiffs for sales tax on maintenance and repair invoices. As to the remaining
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allegations of paragraph 20, FM lacks knowledge or information sufficient to form a belief as to
the truth or accuracy of the remaining allegations and, accordingly, denies the same and leaves
Plaintiffs to their proofs.
21. FM admits that it retained the services of Ernst & Young in order to review its
invoicing practices in connection with alleged incorrect sales tax assessments.
22. Admitted.
23. Paragraph 23 of the Complaint states legal conclusions to which no response is
required. To the extent that a response is required, FM lacks knowledge or information
sufficient to form a belief as to the truth or accuracy of the remaining allegations and,
accordingly, denies the same and leaves Plaintiffs to their proofs.
24. As regards paragraph 24 of the Complaint, FM respectfully refers the Court to the
referenced agreements for their contents, the terms of which speak for themselves and which
preclude the necessity of any further response. To the extent a further response is required, FM
denies the allegations contained in paragraph 24 of the Complaint. To the extent paragraph 24
can be construed to suggest that the Master Customer Agreements are the only documents that
govern the parties’ relationship, FM denies such allegation.
25. As regards paragraph 25 of the Complaint, FM respectfully refers the Court to the
referenced agreements for their contents, the terms of which speak for themselves and which
preclude the necessity of any further response. To the extent a further response is required, FM
admits that the quoted passages appear within the Master Customer Agreements save for
Plaintiffs’ insertion of the word “Plaintiffs,” and affirmatively denies that the Master Customer
Agreements could bind or affect OSI as it was not a signatory thereto. FM further denies the
allegations contained in paragraph 25 of the Complaint to the extent they suggest that FM was
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obligated to ensure the accuracy of all sales tax assessments. Finally, to the extent paragraph 25
can be construed to suggest that the Master Customer Agreements are the only documents that
govern the parties’ relationship, FM denies such allegation.
26. As regards paragraph 26 of the Complaint, FM respectfully refers the Court to the
referenced agreement for its contents, the terms of which speak for themselves and which
preclude the necessity of any further response. To the extent a further response is required, FM
denies the allegation as phrased. FM further denies the allegations contained in paragraph 26 of
the Complaint to the extent they suggest that FM was obligated to ensure the accuracy of all
sales tax assessments. Finally, to the extent paragraph 26 can be construed to suggest that the
Master Services Agreement is the only document that governs the parties’ relationship, FM
denies such allegation.
27. As regards paragraph 27 of the Complaint, FM respectfully refers the Court to the
referenced agreement for its contents, the terms of which speak for themselves and which
preclude the necessity of any further response. To the extent a further response is required, FM
admits that such agreement contains the words “actual costs,” but denies any implication that
such words precluded collection of the amounts here in dispute. FM further denies the
allegations contained in paragraph 27 of the Complaint to the extent they suggest that FM was
obligated to ensure the accuracy of all sales tax assessments. Finally, to the extent paragraph 27
can be construed to suggest that the Master Services Agreement is the only document that
governs the parties’ relationship, FM denies such allegation.
28. FM denies the allegations contained in paragraph 28 of the Complaint.
29. FM denies the allegations contained in paragraph 29 of the Complaint.
30. FM denies the allegations contained in paragraph 30 of the Complaint.
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31. As regards paragraph 31 of the Complaint, FM respectfully refers the Court to the
referenced agreement for its contents, the terms of which speak for themselves and which
preclude the necessity of any further response. To the extent a further response is required, FM
admits that the quoted passage appear within the Master Services Agreement save for Plaintiffs’
use of italics and their insertion of the word “Plaintiffs” and affirmatively denies that this
provision of the Master Services Agreement could bind or affect the OSI Companies as they
were not signatories thereto or otherwise bound thereby. FM further denies the allegations
contained in paragraph 31 of the Complaint to the extent they suggest that FM was obligated to
ensure the accuracy of all sales tax assessments. Finally, to the extent paragraph 31 can be
construed to suggest that the Master Customer Agreements are the only documents that govern
the parties’ relationship, FM denies such allegation.
32. FM denies the allegations contained in paragraph 32 of the Complaint.
33. Denied. Additionally, the allegations contained in Paragraph 33 of the Complaint
are founded upon conclusions of law and, accordingly, no further response is required.
34. FM admits that it “promised to ‘look into the matter’” and specifically avers that
it did, in fact do so. In all other respects, the allegations contained in paragraph 34 of the
Complaint are denied.
35. FM denies the allegations contained in paragraph 35 of the Complaint.
36. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 36 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs.
37. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 37 of the Complaint and, accordingly, denies
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the same and leaves Plaintiffs to their proofs. Additionally, the allegations contained in
paragraph 37 of the Complaint are founded upon conclusions of law and, accordingly, no further
response is required. Finally, to the extent paragraph 37 can be construed to assert that FM was
not cooperative with, or refused to consent to Plaintiffs’ recovery efforts, FM denies the same.
38. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 38 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs. Additionally, the allegations contained in
paragraph 38 of the Complaint are founded upon conclusions of law and, accordingly, no further
response is required. Finally, FM denies that itwas unresponsive or uncooperative as regards
Plaintiffs’ recovery efforts.
39. FM denies the allegations contained in paragraph 39 of the Complaint.
AS AND FOR A FIRST CAUSE OF ACTION
(Breach of Contract)
40. With respect to paragraph 40 of the Complaint, FM repeats, reiterates and
realleges each and every response contained in paragraphs 1 through 39 of its answer with the
same force and effect as if more fully set forth at length herein.
41. FM lacks knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 41 of the Complaint and, accordingly, denies
the same and leaves Plaintiffs to their proofs. Additionally, the allegations contained in
paragraph 41 of the Complaint are founded upon conclusions of law and, accordingly, no further
response is required. To the extent a further response is required, FM denies the allegations
contained in Paragraph 41 of the Complaint.
42. FM denies the allegations contained in paragraph 42 of the Complaint.
43. FM denies the allegations contained in paragraph 43 of the Complaint.
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44. FM responds that the terms of the agreements, as well as amendments, referenced
in paragraph 44 of the Complaint speak for themselves and refers the Court to them for their
contents. Finally, to the extent paragraph 44 can be construed to suggest that the Master
Customer Agreements are the only documents that govern the parties’ relationship, FM denies
such allegation
45. FM denies the allegations contained in paragraph 45 of the Complaint.
AS AND FOR A SECOND CAUSE OF ACTION
(Breach of Implied Covenant of Good Faith and Fair Dealing)
46. With respect to paragraph 46 of the Complaint, FM repeats, reiterates and
realleges each and every response contained in paragraphs 1 through 45 of its answer with the
same force and effect as if more fully set forth at length herein.
47. FM denies the allegations contained in paragraph 47 of the Complaint.
48. FM denies the allegations contained in paragraph 48 of the Complaint.
49. FM denies the allegations contained in paragraph 49 of the Complaint.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
The Complaint fails to state a cause of action upon which relief can be granted as a
matter of fact and/or law.
SECOND AFFIRMATIVE DEFENSE
The Complaint is barred as and to the extent the tax refunds sought by Plaintiffs relate to
taxing jurisdictions that, under prevailing local law, provide for exclusive administrative or
judicial remedies inconsistent with Plaintiffs’ claims here.
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THIRD AFFIRMATIVE DEFENSE
The Complaint is barred as and to the extent the tax refunds sought by Plaintiffs relate to
taxing jurisdictions that, under prevailing local law, provide for condition(s) precedent to the
commencement of a tax rebate proceeding that were not properly effectuated or complied with
by Plaintiffs prior to the commencement of this action.
FOURTH AFFIRMATIVE DEFENSE
The actions of FM were compelled and/or permissible under the law(s) of the applicable
taxing jurisdictions.
FIFTH AFFIRMATIVE DEFENSE
The laws of the applicable taxing jurisdictions afford immunity to FM with respect to the
acts complained of by Plaintiffs.
SIXTH AFFIRMATIVE DEFENSE
By remitting all sums collected to the relevant taxing authorities, FM absolved itself of
any liability for the acts or omissions complained of by Plaintiffs.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred and precluded, or limited in whole or in part, by the
applicable statute of limitations, time limits to exercise rights and/or statutes of repose.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims have been novated or extinguished by their own actions.
NINTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by the voluntary payment doctrine.
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TENTH AFFIRMATIVE DEFENSE
At all times relevant hereto, FM has acted in good faith and have not violated any rights
which may be secured to Plaintiffs under any federal, state or local laws, rules, regulations or
guidelines.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims or the damages that they may recover are barred and/or diminished by
their failure to properly or reasonably mitigate their alleged damages.
TWELFTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred and/or diminished under principles of waiver, laches,
unclean hands, and equitable estoppel.
THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred and precluded, or limited in whole or in part, because at least
one of the Plaintiffs lack standing to bring this action, in whole or in part.
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by adherence to the doctrine of comity.
FIFTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by applicable state law doctrines of sovereign immunity.
SIXTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by accord and satisfaction.
SEVENTEENTH AFFIRMATIVE DEFENSE
This Court should decline to exercise jurisdiction under applicable abstention principles.
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EIGHTEENTH AFFIRMATIVE DEFENSE
This Court should decline to exercise jurisdiction because this Court is an inconvenient
forum pursuant to applicable New York law.
NINETEENTH AFFIRMATIVE DEFENSE
This Court should decline to exercise jurisdiction on the basis of forum non conveniens.
TWENTIETH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by the doctrine of primary jurisdiction.
TWENTY-FIRST AFFIRMATIVE DEFENSE
By failing to join the various applicable state taxing jurisdictions as parties to this
proceeding, Plaintiffs have prevented a full and proper adjudication of the issues sub judice.
TWENTY-SECOND AFFIRMATIVE DEFENSE
In collecting the taxes at issue in the matter sub judice, FM acted as an agent of the
applicable state taxing jurisdictions and, as such, it has no individual responsibility for its actions
and/or is immune from suit pursuant to, inter alia, applicable state doctrines of sovereign
immunity.
TWENTY-THIRD AFFIRMATIVE DEFENSE
Plaintiffs’ claims are an attempt to obtain disgorgement of funds belonging to the various
state taxing jurisdictions and, as such, such claims are barred by, inter alia, applicable state
doctrines of sovereign immunity and or the exclusivity of the remedies afforded by such
jurisdictions with respect to tax rebate claims.
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TWENTY-FOURTH AFFIRMATIVE DEFENSE
In collecting the taxes at issue, FM’s acts were ministerial in nature and undertaken as an
agent of the applicable state taxing jurisdictions. As such, the same cannot serve as a basis for
any liability on the part of FM.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by the exclusive jurisdiction doctrine.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiffs have waived their claims by failing to diligently pursue their available remedies
pursuant to the applicable state regulatory, administrative, and statutory mechanisms established
by the relevant state taxing authorities.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claimed entitlement to an award of attorneys’ fees is not supported by the
language of the relevant agreement(s) between the parties.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs acquiesced in and ratified the conduct of FM that Plaintiffs now complain of.
TWENTY-NINTH AFFIRMATIVE DEFENSE
The claims of Plaintiffs have been released.
THIRTIETH AFFIRMATIVE DEFENSE
The actions of FM were in compliance with the laws of the applicable taxing
jurisdictions.
THIRTY-FIRST AFFIRMATIVE DEFENSE
FM expressly reserves the right to amend this answer to plead any further affirmative
defenses which may be revealed as discovery progresses.
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COUNTER-CLAIMS
Defendant FM, through its undersigned attorneys, in the alternative to its answer and
affirmative defenses as herein set forth, complains against Plaintiffs as follows:
AS AND FOR A FIRST CAUSE OF ACTION
(Breach of Contract As To Agreement I)
1. FM and the OSI Companies entered into an agreement that was effective from
March 30, 2009 through September 30, 2010 (“Agreement I”). A copy of Agreement I is
attached hereto as Exhibit A.
2. Pursuant to Agreement I, FM agreed, in connection with Covered Services (as
therein defined), to use its best commercial efforts to achieve certain cost savings for the OSI
Companies as compared to the amount spent by them during a defined prior timeframe (defined
as the “Spend Baseline”).
3. Under Agreement I, FM was compensated by way of a “Shared Savings
Calculation.”
4. By comparing the Spend Baseline against the amount that the OSI Companies
spent on Covered Services, FM and the OSI Companies were able to calculate the amount that
FM had saved the OSI Companies during the relevant timeframes covered under Agreement I.
5. Once the amount of such savings was calculated, Agreement I set forth the
manner in which it would be shared or split between FM and the OSI Companies.
6. Pursuant to Agreement I, any amount received by the OSI Companies that
reflected a reduction in the OSI Companies’ annual spend was to be shared based upon the Total
Savings provisions of Agreement I.
7. Upon information and belief, the OSI Plaintiffs have recovered at least
$782,531.71 in tax refunds from various state taxing authorities.
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8. Any tax refunds received by the OSI Companies concerning tax payments
remitted to those states with respect to the time period covered under Agreement I are subject to
the Total Savings calculation because they reflect increases in the Total Savings amount for and
during such time period.
9. The OSI Companies have failed and refuse to remit such sums to FM in
derogation of their obligations under Agreement I and FM has been thereby damaged.
10. Agreement I further provides that, in any dispute between the OSI Companies and
FM arising out of or relating to Agreement I, the “prevailing party shall recover all reasonable
attorneys’ fees and costs, court or arbitration costs or fees, reasonable arbitrator fees and
expenses and reasonable expert witness fees and expenses.”
11. FM has already incurred fees, costs and expenses in connection with these
proceedings, and anticipates the future disbursement of additional monies with respect to the
same, all to its further damage.
AS AND FOR A SECOND CAUSE OF ACTION
(Breach of Contract As To Agreement II)
13. FM and the OSI Companies entered into an agreement that was effective from
October 1, 2010 through December 31, 2013 (“Agreement II”). A copy of Agreement II is
attached hereto as Exhibit B.
14. Pursuant to Agreement II, FM agreed, in connection with Covered Services (as
therein defined), to use its best commercial efforts to achieve certain cost savings for the OSI
Companies as compared to the amount spent by them during a defined prior timeframe (defined
as the “Spend Baseline”).
15. Under Agreement II, FM was compensated by way of a “Shared Savings
Calculation.”
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16. By comparing the Spend Baseline against the amount that the OSI Companies
spent on Covered Services, FM and the OSI Companies were able to calculate the amount that
FM had saved the OSI Companies during the relevant timeframes covered under Agreement II.
17. Once the amount of such savings was calculated, Agreement II set forth the
manner in which it would be shared or split between FM and the OSI Companies.
18. Pursuant to Agreement II, any amount received by the OSI Companies that
reflected a reduction in the OSI Companies’ annual spend was to be shared based upon the
Shared Savings provisions of Agreement II.
19. Upon information and belief, the OSI Plaintiffs have recovered at least
$782,531.71 in tax refunds from various state taxing authorities.
20. Any tax refunds received by the OSI Companies concerning tax payments
remitted to those states with respect to the time period covered under Agreement II are subject to
the Shared Savings calculation because they reflect increases in the amount saved for and during
such time period.
21. The OSI Companies have failed and refuse to remit such sums to FM in
derogation of their obligations under Agreement II and FM has been thereby damaged.
22. Agreement II further provides that, in any dispute between the OSI Companies
and FM arising out of or relating to Agreement II, the “prevailing party shall recover all
reasonable attorneys’ fees and costs, court or arbitration costs or fees, reasonable arbitrator fees
and expenses and reasonable expert witness fees and expenses.”
23. FM has already incurred fees, costs and expenses in connection with these
proceedings, and anticipates the future disbursement of additional monies with respect to the
same, all to its further damage.
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AS AND FOR A THIRD CAUSE OF ACTION
(Declaratory Judgment As To Agreement I)
24. FM repeats and realleges the allegations set forth in paragraphs 1-6 of these
counterclaims, each as if fully set forth herein.
25. Upon information and belief, the OSI Plaintiffs are presently seeking to recover
tax refunds from various state taxing authorities.
26. Any tax refunds received by the OSI Companies concerning tax payments
remitted to those states with respect to the time period covered under Agreement I are subject to
the Total Savings calculation because they reflect increases in the Total Savings amount for and
during such time period.
27. FM repeats and realleges the allegations set forth in paragraph 10 of these
counterclaims, as if fully set forth herein.
28. FM anticipates incurring costs, expenses and fees in connection with its claim for
a declaratory judgment as to Agreement I.
29. By reason of the foregoing, under CPLR 3001, FM is entitled to a judgment
declaring that any tax refund amounts that the OSI Companies receive will result in additional
savings for the OSI Companies that are properly subject to the Total Savings Calculation
contained in Agreement I.
AS AND FOR A FOURTH CAUSE OF ACTION
(Declaratory Judgment As To Agreement II)
30. FM repeats and realleges the allegations set forth in paragraphs 13-18 of these
counterclaims, each as if fully set forth herein.
31. Upon information and belief, the OSI Plaintiffs are presently seeking to recover
tax refunds from various state taxing authorities.
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32. Any tax refunds received by the OSI Companies concerning tax payments
remitted to those states with respect to the time period covered under Agreement II are subject to
the Shared Savings calculation because they reflect increases in the Shared Savings amount for
and during such time period.
Preview
FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA ----------------------------------------------------------X OSI RESTAURANT PARTNERS, LLC, et al. Plaintiffs, Index No. 2016-EF-2494 -against- IPT, LLC d/b/a FM FACILITY ANSWER AND MAINTENANCE, COUNTER-CLAIMS Defendant. ----------------------------------------------------------X Defendant IPT, LLC d/b/a FM Facility Maintenance (“FM”), through its undersigned attorneys, as and for its answer to plaintiffs Bonefish Grill of Florida, LLC, Bonefish Grill, LLC, Outback/Flemings, LLC, Outback Steakhouse of Florida, LLC, and Carrabba’s Italian Grill, LLC’s (“OSI Companies”), and OSI Restaurant Partners, LLC’s (“OSI” and, together with the OSI Companies, “Plaintiffs”) complaint in this action (“Complaint”), states as follows: THE PARTIES 1. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 1 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. 2. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 2 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. 3. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 3 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. 1 1 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 4. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 4 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. 5. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 5 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. 6. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 6 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. 7. FM admits that it is a Connecticut limited liability company, but denies that its principal place of business is in Hartford, Connecticut. JURISDICTION AND VENUE 8. Paragraph 8 of the Complaint contains conclusions of law that require no response. To the extent a response is required, FM admits the allegations contained in paragraph 8 of the Complaint to the extent that the “Master Services Agreement” includes language which reads that the “state courts of the State of New York” shall have “exclusive jurisdiction” over any “suit, action or other proceeding related to or arising out of” such agreement, but FM denies the remaining allegations contained in paragraph 8 of the Complaint. FACTUAL BACKGROUND 9. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 9 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. 2 2 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 10. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 10 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. 11. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 11 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. 12. FM admits the allegations contained in paragraph 12 of the Complaint. 13. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 13 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. 14. FM admits that it entered into a series of agreements with Plaintiffs as referenced in paragraph 14 of the Complaint and respectfully refers the Court to those agreements for their contents, the terms of which speak for themselves and which preclude the necessity of any further response. To the extent any further response is required, FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the remaining allegations contained in paragraph 14 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. 15. FM admits that it entered into a certain Master Customer Agreement as referenced in paragraph 15 of the Complaint and respectfully refers the Court to that agreement for its contents, the terms of which speak for themselves and which preclude the necessity of any further response. FM further admits that the document attached to the Complaint as Exhibit A is a true and correct copy of such Master Customer Agreement. To the extent paragraph 15 can be 3 3 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 read to suggest that FM and the OSI Companies were the sole signatories to such agreement, FM denies such allegation. 16. FM admits that it entered into a certain Master Customer Agreement, as well as several amendments thereto, all as referenced in paragraph 16 of the Complaint and respectfully refers the Court to that agreement and those amendments for their contents, the terms of which speak for themselves and which preclude the necessity of any further response. FM further admits that the documents attached to the Complaint as Exhibit B are true and correct copies of such Master Customer Agreement and related amendments. To the extent paragraph 16 can be read to suggest that FM and the OSI Companies were the sole signatories to such agreement and amendments, FM denies such allegation. 17. FM admits that it entered into a certain Master Services Agreement as referenced in paragraph 17 of the Complaint and respectfully refers the Court to that agreement for its contents, the terms of which speak for themselves and which preclude the necessity of any further response. FM further admits that the document attached to the Complaint as Exhibit C is a true and correct copy of such Master Services Agreement. 18. FM denies the allegations contained in paragraph 18 of the Complaint as phrased, and further respectfully refers the Court to those agreements for their contents, the terms of which speak for themselves and which preclude the necessity of any further response. 19. FM denies the allegations contained in paragraph 19 of the Complaint as phrased, and further respectfully refers the Court to those agreements for their contents, the terms of which speak for themselves and which preclude the necessity of any further response. 20. As to Paragraph 20 of the Complaint, FM denies the allegations that it overcharged Plaintiffs for sales tax on maintenance and repair invoices. As to the remaining 4 4 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 allegations of paragraph 20, FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the remaining allegations and, accordingly, denies the same and leaves Plaintiffs to their proofs. 21. FM admits that it retained the services of Ernst & Young in order to review its invoicing practices in connection with alleged incorrect sales tax assessments. 22. Admitted. 23. Paragraph 23 of the Complaint states legal conclusions to which no response is required. To the extent that a response is required, FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the remaining allegations and, accordingly, denies the same and leaves Plaintiffs to their proofs. 24. As regards paragraph 24 of the Complaint, FM respectfully refers the Court to the referenced agreements for their contents, the terms of which speak for themselves and which preclude the necessity of any further response. To the extent a further response is required, FM denies the allegations contained in paragraph 24 of the Complaint. To the extent paragraph 24 can be construed to suggest that the Master Customer Agreements are the only documents that govern the parties’ relationship, FM denies such allegation. 25. As regards paragraph 25 of the Complaint, FM respectfully refers the Court to the referenced agreements for their contents, the terms of which speak for themselves and which preclude the necessity of any further response. To the extent a further response is required, FM admits that the quoted passages appear within the Master Customer Agreements save for Plaintiffs’ insertion of the word “Plaintiffs,” and affirmatively denies that the Master Customer Agreements could bind or affect OSI as it was not a signatory thereto. FM further denies the allegations contained in paragraph 25 of the Complaint to the extent they suggest that FM was 5 5 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 obligated to ensure the accuracy of all sales tax assessments. Finally, to the extent paragraph 25 can be construed to suggest that the Master Customer Agreements are the only documents that govern the parties’ relationship, FM denies such allegation. 26. As regards paragraph 26 of the Complaint, FM respectfully refers the Court to the referenced agreement for its contents, the terms of which speak for themselves and which preclude the necessity of any further response. To the extent a further response is required, FM denies the allegation as phrased. FM further denies the allegations contained in paragraph 26 of the Complaint to the extent they suggest that FM was obligated to ensure the accuracy of all sales tax assessments. Finally, to the extent paragraph 26 can be construed to suggest that the Master Services Agreement is the only document that governs the parties’ relationship, FM denies such allegation. 27. As regards paragraph 27 of the Complaint, FM respectfully refers the Court to the referenced agreement for its contents, the terms of which speak for themselves and which preclude the necessity of any further response. To the extent a further response is required, FM admits that such agreement contains the words “actual costs,” but denies any implication that such words precluded collection of the amounts here in dispute. FM further denies the allegations contained in paragraph 27 of the Complaint to the extent they suggest that FM was obligated to ensure the accuracy of all sales tax assessments. Finally, to the extent paragraph 27 can be construed to suggest that the Master Services Agreement is the only document that governs the parties’ relationship, FM denies such allegation. 28. FM denies the allegations contained in paragraph 28 of the Complaint. 29. FM denies the allegations contained in paragraph 29 of the Complaint. 30. FM denies the allegations contained in paragraph 30 of the Complaint. 6 6 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 31. As regards paragraph 31 of the Complaint, FM respectfully refers the Court to the referenced agreement for its contents, the terms of which speak for themselves and which preclude the necessity of any further response. To the extent a further response is required, FM admits that the quoted passage appear within the Master Services Agreement save for Plaintiffs’ use of italics and their insertion of the word “Plaintiffs” and affirmatively denies that this provision of the Master Services Agreement could bind or affect the OSI Companies as they were not signatories thereto or otherwise bound thereby. FM further denies the allegations contained in paragraph 31 of the Complaint to the extent they suggest that FM was obligated to ensure the accuracy of all sales tax assessments. Finally, to the extent paragraph 31 can be construed to suggest that the Master Customer Agreements are the only documents that govern the parties’ relationship, FM denies such allegation. 32. FM denies the allegations contained in paragraph 32 of the Complaint. 33. Denied. Additionally, the allegations contained in Paragraph 33 of the Complaint are founded upon conclusions of law and, accordingly, no further response is required. 34. FM admits that it “promised to ‘look into the matter’” and specifically avers that it did, in fact do so. In all other respects, the allegations contained in paragraph 34 of the Complaint are denied. 35. FM denies the allegations contained in paragraph 35 of the Complaint. 36. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 36 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. 37. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 37 of the Complaint and, accordingly, denies 7 7 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 the same and leaves Plaintiffs to their proofs. Additionally, the allegations contained in paragraph 37 of the Complaint are founded upon conclusions of law and, accordingly, no further response is required. Finally, to the extent paragraph 37 can be construed to assert that FM was not cooperative with, or refused to consent to Plaintiffs’ recovery efforts, FM denies the same. 38. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 38 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. Additionally, the allegations contained in paragraph 38 of the Complaint are founded upon conclusions of law and, accordingly, no further response is required. Finally, FM denies that itwas unresponsive or uncooperative as regards Plaintiffs’ recovery efforts. 39. FM denies the allegations contained in paragraph 39 of the Complaint. AS AND FOR A FIRST CAUSE OF ACTION (Breach of Contract) 40. With respect to paragraph 40 of the Complaint, FM repeats, reiterates and realleges each and every response contained in paragraphs 1 through 39 of its answer with the same force and effect as if more fully set forth at length herein. 41. FM lacks knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in paragraph 41 of the Complaint and, accordingly, denies the same and leaves Plaintiffs to their proofs. Additionally, the allegations contained in paragraph 41 of the Complaint are founded upon conclusions of law and, accordingly, no further response is required. To the extent a further response is required, FM denies the allegations contained in Paragraph 41 of the Complaint. 42. FM denies the allegations contained in paragraph 42 of the Complaint. 43. FM denies the allegations contained in paragraph 43 of the Complaint. 8 8 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 44. FM responds that the terms of the agreements, as well as amendments, referenced in paragraph 44 of the Complaint speak for themselves and refers the Court to them for their contents. Finally, to the extent paragraph 44 can be construed to suggest that the Master Customer Agreements are the only documents that govern the parties’ relationship, FM denies such allegation 45. FM denies the allegations contained in paragraph 45 of the Complaint. AS AND FOR A SECOND CAUSE OF ACTION (Breach of Implied Covenant of Good Faith and Fair Dealing) 46. With respect to paragraph 46 of the Complaint, FM repeats, reiterates and realleges each and every response contained in paragraphs 1 through 45 of its answer with the same force and effect as if more fully set forth at length herein. 47. FM denies the allegations contained in paragraph 47 of the Complaint. 48. FM denies the allegations contained in paragraph 48 of the Complaint. 49. FM denies the allegations contained in paragraph 49 of the Complaint. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a cause of action upon which relief can be granted as a matter of fact and/or law. SECOND AFFIRMATIVE DEFENSE The Complaint is barred as and to the extent the tax refunds sought by Plaintiffs relate to taxing jurisdictions that, under prevailing local law, provide for exclusive administrative or judicial remedies inconsistent with Plaintiffs’ claims here. 9 9 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 THIRD AFFIRMATIVE DEFENSE The Complaint is barred as and to the extent the tax refunds sought by Plaintiffs relate to taxing jurisdictions that, under prevailing local law, provide for condition(s) precedent to the commencement of a tax rebate proceeding that were not properly effectuated or complied with by Plaintiffs prior to the commencement of this action. FOURTH AFFIRMATIVE DEFENSE The actions of FM were compelled and/or permissible under the law(s) of the applicable taxing jurisdictions. FIFTH AFFIRMATIVE DEFENSE The laws of the applicable taxing jurisdictions afford immunity to FM with respect to the acts complained of by Plaintiffs. SIXTH AFFIRMATIVE DEFENSE By remitting all sums collected to the relevant taxing authorities, FM absolved itself of any liability for the acts or omissions complained of by Plaintiffs. SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred and precluded, or limited in whole or in part, by the applicable statute of limitations, time limits to exercise rights and/or statutes of repose. EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ claims have been novated or extinguished by their own actions. NINTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by the voluntary payment doctrine. 10 10 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 TENTH AFFIRMATIVE DEFENSE At all times relevant hereto, FM has acted in good faith and have not violated any rights which may be secured to Plaintiffs under any federal, state or local laws, rules, regulations or guidelines. ELEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims or the damages that they may recover are barred and/or diminished by their failure to properly or reasonably mitigate their alleged damages. TWELFTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred and/or diminished under principles of waiver, laches, unclean hands, and equitable estoppel. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred and precluded, or limited in whole or in part, because at least one of the Plaintiffs lack standing to bring this action, in whole or in part. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by adherence to the doctrine of comity. FIFTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by applicable state law doctrines of sovereign immunity. SIXTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by accord and satisfaction. SEVENTEENTH AFFIRMATIVE DEFENSE This Court should decline to exercise jurisdiction under applicable abstention principles. 11 11 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 EIGHTEENTH AFFIRMATIVE DEFENSE This Court should decline to exercise jurisdiction because this Court is an inconvenient forum pursuant to applicable New York law. NINETEENTH AFFIRMATIVE DEFENSE This Court should decline to exercise jurisdiction on the basis of forum non conveniens. TWENTIETH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by the doctrine of primary jurisdiction. TWENTY-FIRST AFFIRMATIVE DEFENSE By failing to join the various applicable state taxing jurisdictions as parties to this proceeding, Plaintiffs have prevented a full and proper adjudication of the issues sub judice. TWENTY-SECOND AFFIRMATIVE DEFENSE In collecting the taxes at issue in the matter sub judice, FM acted as an agent of the applicable state taxing jurisdictions and, as such, it has no individual responsibility for its actions and/or is immune from suit pursuant to, inter alia, applicable state doctrines of sovereign immunity. TWENTY-THIRD AFFIRMATIVE DEFENSE Plaintiffs’ claims are an attempt to obtain disgorgement of funds belonging to the various state taxing jurisdictions and, as such, such claims are barred by, inter alia, applicable state doctrines of sovereign immunity and or the exclusivity of the remedies afforded by such jurisdictions with respect to tax rebate claims. 12 12 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 TWENTY-FOURTH AFFIRMATIVE DEFENSE In collecting the taxes at issue, FM’s acts were ministerial in nature and undertaken as an agent of the applicable state taxing jurisdictions. As such, the same cannot serve as a basis for any liability on the part of FM. TWENTY-FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by the exclusive jurisdiction doctrine. TWENTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs have waived their claims by failing to diligently pursue their available remedies pursuant to the applicable state regulatory, administrative, and statutory mechanisms established by the relevant state taxing authorities. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claimed entitlement to an award of attorneys’ fees is not supported by the language of the relevant agreement(s) between the parties. TWENTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs acquiesced in and ratified the conduct of FM that Plaintiffs now complain of. TWENTY-NINTH AFFIRMATIVE DEFENSE The claims of Plaintiffs have been released. THIRTIETH AFFIRMATIVE DEFENSE The actions of FM were in compliance with the laws of the applicable taxing jurisdictions. THIRTY-FIRST AFFIRMATIVE DEFENSE FM expressly reserves the right to amend this answer to plead any further affirmative defenses which may be revealed as discovery progresses. 13 13 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 COUNTER-CLAIMS Defendant FM, through its undersigned attorneys, in the alternative to its answer and affirmative defenses as herein set forth, complains against Plaintiffs as follows: AS AND FOR A FIRST CAUSE OF ACTION (Breach of Contract As To Agreement I) 1. FM and the OSI Companies entered into an agreement that was effective from March 30, 2009 through September 30, 2010 (“Agreement I”). A copy of Agreement I is attached hereto as Exhibit A. 2. Pursuant to Agreement I, FM agreed, in connection with Covered Services (as therein defined), to use its best commercial efforts to achieve certain cost savings for the OSI Companies as compared to the amount spent by them during a defined prior timeframe (defined as the “Spend Baseline”). 3. Under Agreement I, FM was compensated by way of a “Shared Savings Calculation.” 4. By comparing the Spend Baseline against the amount that the OSI Companies spent on Covered Services, FM and the OSI Companies were able to calculate the amount that FM had saved the OSI Companies during the relevant timeframes covered under Agreement I. 5. Once the amount of such savings was calculated, Agreement I set forth the manner in which it would be shared or split between FM and the OSI Companies. 6. Pursuant to Agreement I, any amount received by the OSI Companies that reflected a reduction in the OSI Companies’ annual spend was to be shared based upon the Total Savings provisions of Agreement I. 7. Upon information and belief, the OSI Plaintiffs have recovered at least $782,531.71 in tax refunds from various state taxing authorities. 14 14 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 8. Any tax refunds received by the OSI Companies concerning tax payments remitted to those states with respect to the time period covered under Agreement I are subject to the Total Savings calculation because they reflect increases in the Total Savings amount for and during such time period. 9. The OSI Companies have failed and refuse to remit such sums to FM in derogation of their obligations under Agreement I and FM has been thereby damaged. 10. Agreement I further provides that, in any dispute between the OSI Companies and FM arising out of or relating to Agreement I, the “prevailing party shall recover all reasonable attorneys’ fees and costs, court or arbitration costs or fees, reasonable arbitrator fees and expenses and reasonable expert witness fees and expenses.” 11. FM has already incurred fees, costs and expenses in connection with these proceedings, and anticipates the future disbursement of additional monies with respect to the same, all to its further damage. AS AND FOR A SECOND CAUSE OF ACTION (Breach of Contract As To Agreement II) 13. FM and the OSI Companies entered into an agreement that was effective from October 1, 2010 through December 31, 2013 (“Agreement II”). A copy of Agreement II is attached hereto as Exhibit B. 14. Pursuant to Agreement II, FM agreed, in connection with Covered Services (as therein defined), to use its best commercial efforts to achieve certain cost savings for the OSI Companies as compared to the amount spent by them during a defined prior timeframe (defined as the “Spend Baseline”). 15. Under Agreement II, FM was compensated by way of a “Shared Savings Calculation.” 15 15 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 16. By comparing the Spend Baseline against the amount that the OSI Companies spent on Covered Services, FM and the OSI Companies were able to calculate the amount that FM had saved the OSI Companies during the relevant timeframes covered under Agreement II. 17. Once the amount of such savings was calculated, Agreement II set forth the manner in which it would be shared or split between FM and the OSI Companies. 18. Pursuant to Agreement II, any amount received by the OSI Companies that reflected a reduction in the OSI Companies’ annual spend was to be shared based upon the Shared Savings provisions of Agreement II. 19. Upon information and belief, the OSI Plaintiffs have recovered at least $782,531.71 in tax refunds from various state taxing authorities. 20. Any tax refunds received by the OSI Companies concerning tax payments remitted to those states with respect to the time period covered under Agreement II are subject to the Shared Savings calculation because they reflect increases in the amount saved for and during such time period. 21. The OSI Companies have failed and refuse to remit such sums to FM in derogation of their obligations under Agreement II and FM has been thereby damaged. 22. Agreement II further provides that, in any dispute between the OSI Companies and FM arising out of or relating to Agreement II, the “prevailing party shall recover all reasonable attorneys’ fees and costs, court or arbitration costs or fees, reasonable arbitrator fees and expenses and reasonable expert witness fees and expenses.” 23. FM has already incurred fees, costs and expenses in connection with these proceedings, and anticipates the future disbursement of additional monies with respect to the same, all to its further damage. 16 16 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 AS AND FOR A THIRD CAUSE OF ACTION (Declaratory Judgment As To Agreement I) 24. FM repeats and realleges the allegations set forth in paragraphs 1-6 of these counterclaims, each as if fully set forth herein. 25. Upon information and belief, the OSI Plaintiffs are presently seeking to recover tax refunds from various state taxing authorities. 26. Any tax refunds received by the OSI Companies concerning tax payments remitted to those states with respect to the time period covered under Agreement I are subject to the Total Savings calculation because they reflect increases in the Total Savings amount for and during such time period. 27. FM repeats and realleges the allegations set forth in paragraph 10 of these counterclaims, as if fully set forth herein. 28. FM anticipates incurring costs, expenses and fees in connection with its claim for a declaratory judgment as to Agreement I. 29. By reason of the foregoing, under CPLR 3001, FM is entitled to a judgment declaring that any tax refund amounts that the OSI Companies receive will result in additional savings for the OSI Companies that are properly subject to the Total Savings Calculation contained in Agreement I. AS AND FOR A FOURTH CAUSE OF ACTION (Declaratory Judgment As To Agreement II) 30. FM repeats and realleges the allegations set forth in paragraphs 13-18 of these counterclaims, each as if fully set forth herein. 31. Upon information and belief, the OSI Plaintiffs are presently seeking to recover tax refunds from various state taxing authorities. 17 17 of 19 FILED: ONONDAGA COUNTY CLERK 10/26/2017 01:38 PM INDEX NO. 2016EF2494 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/26/2017 32. Any tax refunds received by the OSI Companies concerning tax payments remitted to those states with respect to the time period covered under Agreement II are subject to the Shared Savings calculation because they reflect increases in the Shared Savings amount for and during such time period.