Preview
FILED: NASSAU COUNTY CLERK 12/11/2023 01:55 PM INDEX NO. 617308/2023
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/11/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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THE BAY AT HIGHLANDS HEALTH AND : Index No. 617308/2023
REHABILITATION CENTER, LLC and THE BAY AT
DYERSBURG HEALTH AND REHABILITATION :
CENTER, LLC, AMENDED COMPLAINT
:
Plaintiffs,
:
-against-
:
TN MEM OP, LLC, TN DYER OP, LLC, CHAIM
LEIBOWITZ and DAVID ENGLANDER, :
Defendants.
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Plaintiffs, The Bay at Highlands Health and Rehabilitation Center, LLC (“The Bay at
Highlands”) and The Bay at Dyersburg Health and Rehabilitation Center, LLC (“The Bay at
Dyersburg”), by their attorneys, Abrams Fensterman, LLP, as and for their Amended Complaint
against the Defendants herein, allege as follows:
AS AND FOR A FIRST CAUSE OF ACTION
(Breach of Contract)
1. At all times hereinafter mentioned, Plaintiff, The Bay at Highlands, was and still
is a Tennessee limited liability company, having offices in the County of Nassau, State of New
York.
2. At all times hereinafter mentioned, Plaintiff, The Bay at Dyersburg, was and still
is a Tennessee limited liability company, having offices in the County of Nassau, State of New
York.
3. At all times hereinafter mentioned, upon information and belief, Defendant TN
Mem Op, LLC, was and still is a Delaware limited liability company, and was the former
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operator of a certain skilled nursing facility known as The Highlands of Memphis Health &
Rehabilitation, located at 3549 Norriswood Avenue, Memphis, Tennessee (the “Memphis
Facility”).
4. At all times hereinafter mentioned, upon information and belief, Defendant TN
Dyer Op, LLC, was and still is a Delaware limited liability company, and was the former
operator of a certain skilled nursing facility known as The Highlands of Dyersburg Health &
Rehab, located at 350 East Tickle Street, Dyersburg, Tennessee (the “Dyersburg Facility”).
5. At all times hereinafter mentioned, upon information and belief, Defendant Chaim
Leibowitz a/k/a Jim Leibowitz (“Leibowitz”), was and still is a resident of the County of Nassau,
State of New York. During the relevant time period herein, Leibowitz was an Executive Vice-
President and operator of both TN Mem Op, LLC and TN Dyer Op, LLC.
6. At all times hereinafter mentioned, upon information and belief, Defendant David
Englander (“Englander”), was and still is a resident of the County of Nassau, State of New York.
During the relevant time period herein, Englander was, along with Leibowitz, an operator of both
TN Mem Op, LLC and TN Dyer Op, LLC.
7. On or about January 20, 2022, the parties entered into a certain Operations
Transfer Agreement (“OTA”), pursuant to which Plaintiffs purchased and acquired ownership of
and operational responsibility for the Memphis Facility and the Dyersburg Facility. A true and
accurate copy of the OTA is annexed hereto as Exhibit “A” and is incorporated herein by
reference.
8. Simultaneously therewith, Plaintiffs entered into a separate supplemental
Agreement (the “supplemental Agreement”) with Leibowitz and Englander, in their individual
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capacities, which supplemented certain provisions of the OTA. A true and accurate copy of the
supplemental Agreement is annexed hereto as Exhibit “B” and is incorporated herein by
reference.
9. Defendants breached the OTA and supplemental Agreement in various ways
including, but not limited to: failing to cooperate with the transition of ownership of the
Memphis Facility and the Dyersburg Facility; failing to pay bed taxes in the proper amounts as
required under State and Federal regulations, thereby causing Plaintiffs to incur such obligations;
improperly utilizing escrow funds for obligations for which such funds were not intended,
thereby causing Plaintiffs to be unable to access the escrow funds for the obligations that they
were intended for; and misappropriating and otherwise failing to remit to Plaintiffs various
recoupments, remittances and Covid-19 funding received by Defendants but which should have
been turned over to Plaintiffs, either in whole or in part.
10. At all times, Plaintiffs performed all obligations on their part under the OTA and
supplemental Agreement.
11. That the actions of the Defendants as aforesaid constitute multiple breaches of the
OTA and supplemental Agreement, for which Plaintiffs have been damaged in an amount to be
determined by the Court, but in any event, not less than the sum of Two Hundred Forty-Five
Thousand Fifteen and 29/100 ($245,015.29) Dollars plus interest.
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AS AND FOR A SECOND CAUSE OF ACTION
(Conversion)
12. Plaintiffs repeat and reallege each and every allegation in paragraphs “1” through
“11” of this Amended Complaint, as if more fully set forth at length hereat.
13. The recoupments, remittances and Covid-19 funding received and wrongfully
retained by Defendants constitute specific identifiable things, over which Plaintiffs had
ownership or entitlement.
14. That although Plaintiffs made demand upon the Defendants for the
return/payment of the recoupments, remittances and Covid-19 funding received and wrongfully
retained by Defendants, the Defendants have failed and otherwise refused to remit same to
Plaintiffs, and the Defendants continue to exercise unauthorized dominion and control over
same, to the exclusion and detriment of Plaintiffs’ rights.
15. That the acts of the Defendants as aforesaid constitute a conversion, for which
Plaintiffs have been damaged in an amount to be determined by the Court, but in any event, not
less than the sum of Three Hundred Fifty-Five Thousand One Hundred Thirty-Five and 15/100
Dollars ($355,135.15) plus interest.
AS AND FOR A THIRD CAUSE OF ACTION
(Unjust Enrichment)
16. Plaintiff repeats and realleges each and every allegation in paragraphs “1” through
“15” of this Amended Complaint, as if more fully set forth at length hereat.
17. The Defendants have been enriched, at Plaintiffs’ expense, by virtue of their
retention of the recoupments, remittances and Covid-19 funding aggregating the sum of
$355,135.15.
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18. That it would be against equity and good conscience to permit the Defendants to
retain the recoupments, remittances and Covid-19 funding aggregating the sum of $355,135.15.
19. That the acts of the Defendants as aforesaid constitute unjust enrichment, for
which Plaintiffs have been damaged in the amount of not less than $355,135.15 plus interest.
AS AND FOR A FOURTH CAUSE OF ACTION
(Breach of Implied Covenant of Good Faith)
20. Plaintiff repeats and realleges each and every allegation in paragraphs “1” through
“19” of this Amended Complaint, as if more fully set forth at length hereat.
21. Inherent in the OTA and supplemental Agreement is an implied covenant that the
parties will act in good faith and not undertake any actions to deprive the other party of the fruits
and benefits of the OTA and supplemental Agreement.
22. By their actions as aforesaid, Defendants have violated the implied covenant of
good faith and fair dealing, causing Plaintiffs to suffer damages in the amount of not less than
Two Hundred Forty-Five Thousand Fifteen and 29/100 ($245,015.29) Dollars plus interest.
AS AND FOR A FIFTH CAUSE OF ACTION
(Attorneys’ Fees)
23. Plaintiffs repeat and reallege each and every allegation in paragraphs “1” through
“22” of this Amended Complaint, as if more fully set forth at length hereat.
24. Paragraph “10.4” of the OTA provides for an award of reasonable attorneys’ fees
and court costs to the prevailing party, in the event suit is brought to enforce the provisions or
obligations of the OTA.
25. By virtue of the conduct of the Defendants as aforesaid, Plaintiffs are entitled to
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an award of reasonable attorneys’ fees in an amount to be determined by the Court along with
court costs.
WHEREFORE, Plaintiffs demand judgment on their First Cause of Action in the
amount of $245,015.29 plus interest; on their Second Cause of Action in the amount of
$355,135.15 plus interest; on their Third Cause of Action in the amount of $355,135.15 plus
interest; on their Fourth Cause of Action in the amount of $245,015.29 plus interest; and on their
Fifth Cause of Action awarding attorneys’ fees in an amount to be determined by the Court,
along with the costs and disbursements of this proceeding, and such other and further relief as
the Court may deem just proper and equitable.
Dated: December 11, 2023
ABRAMS FENSTERMAN, LLP
By: ____________________________________
Keith J. Singer
Alex Leibson
3 Dakota Drive, Suite 300
Lake Success, New York 11420
(516) 328-2300
ksinger@abramslaw.com
Attorneys for Plaintiffs
To: HAHN EISENBERGER PLLC
Elliot Hahn, Esq.
969 East 27th Street
Brooklyn, New York 11210
Attorneys for Defendants
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Preview
FILED: NASSAU COUNTY CLERK 12/11/2023 01:55 PM INDEX NO. 617308/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/11/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------------------------------------- x THE BAY AT HIGHLANDS HEALTH AND : Index No. 617308/2023 REHABILITATION CENTER, LLC and THE BAY AT DYERSBURG HEALTH AND REHABILITATION : CENTER, LLC, AMENDED COMPLAINT : Plaintiffs, : -against- : TN MEM OP, LLC, TN DYER OP, LLC, CHAIM LEIBOWITZ and DAVID ENGLANDER, : Defendants. ---------------------------------------- x Plaintiffs, The Bay at Highlands Health and Rehabilitation Center, LLC (“The Bay at Highlands”) and The Bay at Dyersburg Health and Rehabilitation Center, LLC (“The Bay at Dyersburg”), by their attorneys, Abrams Fensterman, LLP, as and for their Amended Complaint against the Defendants herein, allege as follows: AS AND FOR A FIRST CAUSE OF ACTION (Breach of Contract) 1. At all times hereinafter mentioned, Plaintiff, The Bay at Highlands, was and still is a Tennessee limited liability company, having offices in the County of Nassau, State of New York. 2. At all times hereinafter mentioned, Plaintiff, The Bay at Dyersburg, was and still is a Tennessee limited liability company, having offices in the County of Nassau, State of New York. 3. At all times hereinafter mentioned, upon information and belief, Defendant TN Mem Op, LLC, was and still is a Delaware limited liability company, and was the former 1 of 6 FILED: NASSAU COUNTY CLERK 12/11/2023 01:55 PM INDEX NO. 617308/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/11/2023 operator of a certain skilled nursing facility known as The Highlands of Memphis Health & Rehabilitation, located at 3549 Norriswood Avenue, Memphis, Tennessee (the “Memphis Facility”). 4. At all times hereinafter mentioned, upon information and belief, Defendant TN Dyer Op, LLC, was and still is a Delaware limited liability company, and was the former operator of a certain skilled nursing facility known as The Highlands of Dyersburg Health & Rehab, located at 350 East Tickle Street, Dyersburg, Tennessee (the “Dyersburg Facility”). 5. At all times hereinafter mentioned, upon information and belief, Defendant Chaim Leibowitz a/k/a Jim Leibowitz (“Leibowitz”), was and still is a resident of the County of Nassau, State of New York. During the relevant time period herein, Leibowitz was an Executive Vice- President and operator of both TN Mem Op, LLC and TN Dyer Op, LLC. 6. At all times hereinafter mentioned, upon information and belief, Defendant David Englander (“Englander”), was and still is a resident of the County of Nassau, State of New York. During the relevant time period herein, Englander was, along with Leibowitz, an operator of both TN Mem Op, LLC and TN Dyer Op, LLC. 7. On or about January 20, 2022, the parties entered into a certain Operations Transfer Agreement (“OTA”), pursuant to which Plaintiffs purchased and acquired ownership of and operational responsibility for the Memphis Facility and the Dyersburg Facility. A true and accurate copy of the OTA is annexed hereto as Exhibit “A” and is incorporated herein by reference. 8. Simultaneously therewith, Plaintiffs entered into a separate supplemental Agreement (the “supplemental Agreement”) with Leibowitz and Englander, in their individual 2 2 of 6 FILED: NASSAU COUNTY CLERK 12/11/2023 01:55 PM INDEX NO. 617308/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/11/2023 capacities, which supplemented certain provisions of the OTA. A true and accurate copy of the supplemental Agreement is annexed hereto as Exhibit “B” and is incorporated herein by reference. 9. Defendants breached the OTA and supplemental Agreement in various ways including, but not limited to: failing to cooperate with the transition of ownership of the Memphis Facility and the Dyersburg Facility; failing to pay bed taxes in the proper amounts as required under State and Federal regulations, thereby causing Plaintiffs to incur such obligations; improperly utilizing escrow funds for obligations for which such funds were not intended, thereby causing Plaintiffs to be unable to access the escrow funds for the obligations that they were intended for; and misappropriating and otherwise failing to remit to Plaintiffs various recoupments, remittances and Covid-19 funding received by Defendants but which should have been turned over to Plaintiffs, either in whole or in part. 10. At all times, Plaintiffs performed all obligations on their part under the OTA and supplemental Agreement. 11. That the actions of the Defendants as aforesaid constitute multiple breaches of the OTA and supplemental Agreement, for which Plaintiffs have been damaged in an amount to be determined by the Court, but in any event, not less than the sum of Two Hundred Forty-Five Thousand Fifteen and 29/100 ($245,015.29) Dollars plus interest. 3 3 of 6 FILED: NASSAU COUNTY CLERK 12/11/2023 01:55 PM INDEX NO. 617308/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/11/2023 AS AND FOR A SECOND CAUSE OF ACTION (Conversion) 12. Plaintiffs repeat and reallege each and every allegation in paragraphs “1” through “11” of this Amended Complaint, as if more fully set forth at length hereat. 13. The recoupments, remittances and Covid-19 funding received and wrongfully retained by Defendants constitute specific identifiable things, over which Plaintiffs had ownership or entitlement. 14. That although Plaintiffs made demand upon the Defendants for the return/payment of the recoupments, remittances and Covid-19 funding received and wrongfully retained by Defendants, the Defendants have failed and otherwise refused to remit same to Plaintiffs, and the Defendants continue to exercise unauthorized dominion and control over same, to the exclusion and detriment of Plaintiffs’ rights. 15. That the acts of the Defendants as aforesaid constitute a conversion, for which Plaintiffs have been damaged in an amount to be determined by the Court, but in any event, not less than the sum of Three Hundred Fifty-Five Thousand One Hundred Thirty-Five and 15/100 Dollars ($355,135.15) plus interest. AS AND FOR A THIRD CAUSE OF ACTION (Unjust Enrichment) 16. Plaintiff repeats and realleges each and every allegation in paragraphs “1” through “15” of this Amended Complaint, as if more fully set forth at length hereat. 17. The Defendants have been enriched, at Plaintiffs’ expense, by virtue of their retention of the recoupments, remittances and Covid-19 funding aggregating the sum of $355,135.15. 4 4 of 6 FILED: NASSAU COUNTY CLERK 12/11/2023 01:55 PM INDEX NO. 617308/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/11/2023 18. That it would be against equity and good conscience to permit the Defendants to retain the recoupments, remittances and Covid-19 funding aggregating the sum of $355,135.15. 19. That the acts of the Defendants as aforesaid constitute unjust enrichment, for which Plaintiffs have been damaged in the amount of not less than $355,135.15 plus interest. AS AND FOR A FOURTH CAUSE OF ACTION (Breach of Implied Covenant of Good Faith) 20. Plaintiff repeats and realleges each and every allegation in paragraphs “1” through “19” of this Amended Complaint, as if more fully set forth at length hereat. 21. Inherent in the OTA and supplemental Agreement is an implied covenant that the parties will act in good faith and not undertake any actions to deprive the other party of the fruits and benefits of the OTA and supplemental Agreement. 22. By their actions as aforesaid, Defendants have violated the implied covenant of good faith and fair dealing, causing Plaintiffs to suffer damages in the amount of not less than Two Hundred Forty-Five Thousand Fifteen and 29/100 ($245,015.29) Dollars plus interest. AS AND FOR A FIFTH CAUSE OF ACTION (Attorneys’ Fees) 23. Plaintiffs repeat and reallege each and every allegation in paragraphs “1” through “22” of this Amended Complaint, as if more fully set forth at length hereat. 24. Paragraph “10.4” of the OTA provides for an award of reasonable attorneys’ fees and court costs to the prevailing party, in the event suit is brought to enforce the provisions or obligations of the OTA. 25. By virtue of the conduct of the Defendants as aforesaid, Plaintiffs are entitled to 5 5 of 6 FILED: NASSAU COUNTY CLERK 12/11/2023 01:55 PM INDEX NO. 617308/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/11/2023 an award of reasonable attorneys’ fees in an amount to be determined by the Court along with court costs. WHEREFORE, Plaintiffs demand judgment on their First Cause of Action in the amount of $245,015.29 plus interest; on their Second Cause of Action in the amount of $355,135.15 plus interest; on their Third Cause of Action in the amount of $355,135.15 plus interest; on their Fourth Cause of Action in the amount of $245,015.29 plus interest; and on their Fifth Cause of Action awarding attorneys’ fees in an amount to be determined by the Court, along with the costs and disbursements of this proceeding, and such other and further relief as the Court may deem just proper and equitable. Dated: December 11, 2023 ABRAMS FENSTERMAN, LLP By: ____________________________________ Keith J. Singer Alex Leibson 3 Dakota Drive, Suite 300 Lake Success, New York 11420 (516) 328-2300 ksinger@abramslaw.com Attorneys for Plaintiffs To: HAHN EISENBERGER PLLC Elliot Hahn, Esq. 969 East 27th Street Brooklyn, New York 11210 Attorneys for Defendants 6 6 of 6