Preview
FILED: SUFFOLK COUNTY CLERK 03/07/2024 05:23 PM INDEX NO. 605991/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
ERTG d.o.o., Index No. _____________
Plaintiff,
SUMMONS
v.
Emerald Nutraceutical LLC,
Defendant.
TO THE ABOVE-NAMED DEFENDANT:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance, on the Plaintiff’s Attorneys within twenty (20) days after the service of this summons,
exclusive of the day of service (or within thirty (30) days after the service is complete if this
summons is not personally delivered to you within the State of New York); and in case of your
failure to appear or answer, judgment will be taken against you by default for the relief demanded
in the complaint.
The basis of venue is Defendant’s principal place of business and residence.
Dated: March 7, 2024
New York, New York
JACKSON WALKER LLP
__/s/ Joel R. Glover _______
By:Joel R. Glover
New York State Bar No. 5697487
Texas State Bar No. 24087593
Manuel P. Schoenhuber (pro hac vice forthcoming)
State Bar No. 24107994
Taylor L. Leger (pro hac vice forthcoming)
State Bar No. 24119389
1401 McKinney St., Suite 1900
Houston, Texas 77010
Phone: (713) 752-4394
Facsimile: (713) 752-4221
mschoenhuber@jw.com
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BERKE-WEISS LAW PLLC
By:__/s/ Laurie Berke-Weiss_______
Laurie Berke-Weiss
Mairead Kate Burns
Berke-Weiss Law, PLLC
150 East 52nd Street
Suite 21002
New York, New York 10022
(212) 888-2680
laurie@berkeweisslaw.com
kate@berkeweisslaw.com
Attorneys for Plaintiff
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
ERTG d.o.o.,
Plaintiff,
Index No. _____________
COMPLAINT
v.
JURY TRIAL DEMANDED
Emerald Nutraceutical LLC,
Defendant.
COMPLAINT
Plaintiff ERTG d.o.o. (“Plaintiff” or “ERTG”), by and through its undersigned counsel,
Berke-Weiss Law PLLC and Jackson Walker LLP, as and for its Complaint in this action against
Defendant Emerald Nutraceuticals LLC (“Defendant”), respectfully shows and alleges the
following:
PARTIES
1. Plaintiff ERTG is a limited liability company organized under the laws of Slovenia and
having it principal place of business in Ljubljana, Slovenia.
2. Defendant Emerald Nutraceuticals LLC is a New York limited liability company with
its principal place of business in Commack, Suffolk County, New York and may be served with
process at its usual place of business, 48 Mall Drive, Commack, New York, 11725.
JURISDICTION & VENUE
3. The Court has jurisdiction over this controversy under New York Civil Practice Law
and Rules (“CPLR”) § 301, because the damages sought here are in excess of the jurisdictional
minimum requirements of the Court.
4. Venue for this action is proper in Suffolk County under CPLR § 503(a), because
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Defendant resided in Suffolk County when this action was commenced. Venue is also proper in
Suffolk County under CPLR § 503(d), because Defendant maintains its principal office in Suffolk
County.
FACTUAL BACKGROUND
5. Plaintiff is in the business of manufacturing and selling hearing protection to
consumers.
6. Defendant is in the business of contract manufacturing, packaging, and fulfillment of
various private-label packaged consumer goods like dietary supplements, personal care products,
cosmetics, candy, and baked goods.
7. On May 16, 2023, Plaintiff entered into a written agreement with Defendant, wherein
Defendant promised to deliver 12,000 units of two-ounce All Natural Mango Melatonin Spray for
a total cost of $27,480.00.
8. Plaintiff paid $27,480.00 due under the agreement.
9. Although Plaintiff paid for the order, Defendant has failed and refused (and continues
to fail and refuse) to deliver the ordered and fully-paid-for products as agreed. At this point,
Plaintiff no longer has any use for the ordered products.
10. Plaintiff made numerous attempts to contact Defendant but received no response.
11. Plaintiff made demand and presentment of its claims against Defendant via letter dated
January 19, 2024.
12. As of the date of this filing, Defendant is still in breach—it has neither provided the
goods nor reimbursed Plaintiff for the $27,480.00 already paid.
FIRST CAUSE OF ACTION – BREACH OF CONTRACT
13. Plaintiff repeats and re-alleges the allegations contained in the preceding paragraphs as
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if fully set forth herein.
14. Plaintiff and Defendant agreed that Plaintiff would purchase goods from Defendant and
that Defendant would timely deliver those goods.
15. This agreement constituted a valid and enforceable contract between the parties.
16. Plaintiff performed or tendered performance under the agreement by immediately
paying Defendant.
17. Plaintiff also performed all conditions precedent.
18. Defendant breached the agreement by failing to deliver the goods ordered or refund
Plaintiff for the goods not delivered.
19. Plaintiff has suffered damages as a result of Defendant’s failure to timely deliver the
goods and refusal to refund Plaintiff for the goods not delivered.
20. Plaintiff seeks actual, incidental, and consequential damages for its breach of contract
claim pursuant to N.Y. U.C.C. §§ 2-711, 2-712, 2-713, and 2-715.
SECOND CAUSE OF ACTION – FRAUDULENT INDUCEMENT
21. Plaintiff repeats and re-alleges the allegations contained in the preceding paragraphs as
if fully set forth herein.
22. In the alternative to the First Cause of Action, Defendant fraudulently induced Plaintiff.
23. Defendant knowingly, purposefully, and falsely represented to Plaintiff that it had
goods available and ready for immediate shipment.
24. Defendant made that false representation to induce Plaintiff to purchase goods from
Defendant.
25. Plaintiff justifiably relied on that false representation and was induced to purchase
goods from Defendant.
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26. Plaintiff was harmed by Defendant’s false representations.
27. Plaintiff seeks actual, incidental, and consequential damages for its fraudulent
inducement claim.
THIRD CAUSE OF ACTION – UNJUST ENRICHMENT/QUANTUM MERUIT
28. Plaintiff repeats and re-alleges the allegations contained in the preceding paragraphs as
if fully set forth herein.
29. In the alternative to the First Cause of Action, Defendant was unjustly enriched to the
extent that it received payment from Plaintiff for goods not delivered.
30. Defendant was enriched at Plaintiff’s expense because Plaintiff did not receive the
goods for which it paid $27,480.00 to Defendant.
31. It is against equity and good conscience to allow Defendant to retain the amounts paid
to it by Plaintiff for the goods not delivered.
32. Plaintiff seeks actual damages for its unjust enrichment claim. Because Plaintiff
expected delivery of the goods, Defendant’s acceptance of payment for the goods resulted in
liquidated damages in the amount of at least $27,480.00.
WHEREFORE, Plaintiff demands that judgment be entered in its favor and against
Defendant as follows:
a) On the First Cause of Action, judgment in an amount to be determined at trial;
b) On the Second Cause of Action, judgment in an amount to be determined at trial;
c) On the Third Cause of Action, judgment in an amount of $27,480.00;
d) Prejudgment and post judgment interest at the highest maximum legal rate;
e) Court costs;
f) Attorney fees; and
g) All other relief as the Court deems just and proper.
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Dated: March 7, 2024 Respectfully submitted,
New York, New York
JACKSON WALKER LLP
By: __/s/ Joel R. Glover______
Joel R. Glover
New York State Bar No. 5697487
Texas State Bar No. 24087593
Manuel P. Schoenhuber (pro hac vice forthcoming)
State Bar No. 24107994
Taylor L. Leger (pro hac vice forthcoming)
State Bar No. 24119389
1401 McKinney St., Suite 1900
Houston, Texas 77010
Phone: (713) 752-4394
Facsimile: (713) 752-4221
mschoenhuber@jw.com
BERKE-WEISS LAW PLLC
By: __/s/ Laurie Berke-Weiss_____
Laurie Berke-Weiss
Mairead Kate Burns
Berke-Weiss Law PLLC
150 East 52nd Street
Suite 21002
New York, New York 10022
(212) 888-2680
laurie@berkeweisslaw.com
kate@berkeweisslaw.com
Attorneys for Plaintiff
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Preview
FILED: SUFFOLK COUNTY CLERK 03/07/2024 05:23 PM INDEX NO. 605991/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ERTG d.o.o., Index No. _____________ Plaintiff, SUMMONS v. Emerald Nutraceutical LLC, Defendant. TO THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff’s Attorneys within twenty (20) days after the service of this summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. The basis of venue is Defendant’s principal place of business and residence. Dated: March 7, 2024 New York, New York JACKSON WALKER LLP __/s/ Joel R. Glover _______ By:Joel R. Glover New York State Bar No. 5697487 Texas State Bar No. 24087593 Manuel P. Schoenhuber (pro hac vice forthcoming) State Bar No. 24107994 Taylor L. Leger (pro hac vice forthcoming) State Bar No. 24119389 1401 McKinney St., Suite 1900 Houston, Texas 77010 Phone: (713) 752-4394 Facsimile: (713) 752-4221 mschoenhuber@jw.com 38984063v.1 1 of 7 FILED: SUFFOLK COUNTY CLERK 03/07/2024 05:23 PM INDEX NO. 605991/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 BERKE-WEISS LAW PLLC By:__/s/ Laurie Berke-Weiss_______ Laurie Berke-Weiss Mairead Kate Burns Berke-Weiss Law, PLLC 150 East 52nd Street Suite 21002 New York, New York 10022 (212) 888-2680 laurie@berkeweisslaw.com kate@berkeweisslaw.com Attorneys for Plaintiff -2- 38984063v.1 2 of 7 FILED: SUFFOLK COUNTY CLERK 03/07/2024 05:23 PM INDEX NO. 605991/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ERTG d.o.o., Plaintiff, Index No. _____________ COMPLAINT v. JURY TRIAL DEMANDED Emerald Nutraceutical LLC, Defendant. COMPLAINT Plaintiff ERTG d.o.o. (“Plaintiff” or “ERTG”), by and through its undersigned counsel, Berke-Weiss Law PLLC and Jackson Walker LLP, as and for its Complaint in this action against Defendant Emerald Nutraceuticals LLC (“Defendant”), respectfully shows and alleges the following: PARTIES 1. Plaintiff ERTG is a limited liability company organized under the laws of Slovenia and having it principal place of business in Ljubljana, Slovenia. 2. Defendant Emerald Nutraceuticals LLC is a New York limited liability company with its principal place of business in Commack, Suffolk County, New York and may be served with process at its usual place of business, 48 Mall Drive, Commack, New York, 11725. JURISDICTION & VENUE 3. The Court has jurisdiction over this controversy under New York Civil Practice Law and Rules (“CPLR”) § 301, because the damages sought here are in excess of the jurisdictional minimum requirements of the Court. 4. Venue for this action is proper in Suffolk County under CPLR § 503(a), because -3- 38984063v.1 3 of 7 FILED: SUFFOLK COUNTY CLERK 03/07/2024 05:23 PM INDEX NO. 605991/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 Defendant resided in Suffolk County when this action was commenced. Venue is also proper in Suffolk County under CPLR § 503(d), because Defendant maintains its principal office in Suffolk County. FACTUAL BACKGROUND 5. Plaintiff is in the business of manufacturing and selling hearing protection to consumers. 6. Defendant is in the business of contract manufacturing, packaging, and fulfillment of various private-label packaged consumer goods like dietary supplements, personal care products, cosmetics, candy, and baked goods. 7. On May 16, 2023, Plaintiff entered into a written agreement with Defendant, wherein Defendant promised to deliver 12,000 units of two-ounce All Natural Mango Melatonin Spray for a total cost of $27,480.00. 8. Plaintiff paid $27,480.00 due under the agreement. 9. Although Plaintiff paid for the order, Defendant has failed and refused (and continues to fail and refuse) to deliver the ordered and fully-paid-for products as agreed. At this point, Plaintiff no longer has any use for the ordered products. 10. Plaintiff made numerous attempts to contact Defendant but received no response. 11. Plaintiff made demand and presentment of its claims against Defendant via letter dated January 19, 2024. 12. As of the date of this filing, Defendant is still in breach—it has neither provided the goods nor reimbursed Plaintiff for the $27,480.00 already paid. FIRST CAUSE OF ACTION – BREACH OF CONTRACT 13. Plaintiff repeats and re-alleges the allegations contained in the preceding paragraphs as -4- 38984063v.1 4 of 7 FILED: SUFFOLK COUNTY CLERK 03/07/2024 05:23 PM INDEX NO. 605991/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 if fully set forth herein. 14. Plaintiff and Defendant agreed that Plaintiff would purchase goods from Defendant and that Defendant would timely deliver those goods. 15. This agreement constituted a valid and enforceable contract between the parties. 16. Plaintiff performed or tendered performance under the agreement by immediately paying Defendant. 17. Plaintiff also performed all conditions precedent. 18. Defendant breached the agreement by failing to deliver the goods ordered or refund Plaintiff for the goods not delivered. 19. Plaintiff has suffered damages as a result of Defendant’s failure to timely deliver the goods and refusal to refund Plaintiff for the goods not delivered. 20. Plaintiff seeks actual, incidental, and consequential damages for its breach of contract claim pursuant to N.Y. U.C.C. §§ 2-711, 2-712, 2-713, and 2-715. SECOND CAUSE OF ACTION – FRAUDULENT INDUCEMENT 21. Plaintiff repeats and re-alleges the allegations contained in the preceding paragraphs as if fully set forth herein. 22. In the alternative to the First Cause of Action, Defendant fraudulently induced Plaintiff. 23. Defendant knowingly, purposefully, and falsely represented to Plaintiff that it had goods available and ready for immediate shipment. 24. Defendant made that false representation to induce Plaintiff to purchase goods from Defendant. 25. Plaintiff justifiably relied on that false representation and was induced to purchase goods from Defendant. -5- 38984063v.1 5 of 7 FILED: SUFFOLK COUNTY CLERK 03/07/2024 05:23 PM INDEX NO. 605991/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 26. Plaintiff was harmed by Defendant’s false representations. 27. Plaintiff seeks actual, incidental, and consequential damages for its fraudulent inducement claim. THIRD CAUSE OF ACTION – UNJUST ENRICHMENT/QUANTUM MERUIT 28. Plaintiff repeats and re-alleges the allegations contained in the preceding paragraphs as if fully set forth herein. 29. In the alternative to the First Cause of Action, Defendant was unjustly enriched to the extent that it received payment from Plaintiff for goods not delivered. 30. Defendant was enriched at Plaintiff’s expense because Plaintiff did not receive the goods for which it paid $27,480.00 to Defendant. 31. It is against equity and good conscience to allow Defendant to retain the amounts paid to it by Plaintiff for the goods not delivered. 32. Plaintiff seeks actual damages for its unjust enrichment claim. Because Plaintiff expected delivery of the goods, Defendant’s acceptance of payment for the goods resulted in liquidated damages in the amount of at least $27,480.00. WHEREFORE, Plaintiff demands that judgment be entered in its favor and against Defendant as follows: a) On the First Cause of Action, judgment in an amount to be determined at trial; b) On the Second Cause of Action, judgment in an amount to be determined at trial; c) On the Third Cause of Action, judgment in an amount of $27,480.00; d) Prejudgment and post judgment interest at the highest maximum legal rate; e) Court costs; f) Attorney fees; and g) All other relief as the Court deems just and proper. -6- 38984063v.1 6 of 7 FILED: SUFFOLK COUNTY CLERK 03/07/2024 05:23 PM INDEX NO. 605991/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/07/2024 Dated: March 7, 2024 Respectfully submitted, New York, New York JACKSON WALKER LLP By: __/s/ Joel R. Glover______ Joel R. Glover New York State Bar No. 5697487 Texas State Bar No. 24087593 Manuel P. Schoenhuber (pro hac vice forthcoming) State Bar No. 24107994 Taylor L. Leger (pro hac vice forthcoming) State Bar No. 24119389 1401 McKinney St., Suite 1900 Houston, Texas 77010 Phone: (713) 752-4394 Facsimile: (713) 752-4221 mschoenhuber@jw.com BERKE-WEISS LAW PLLC By: __/s/ Laurie Berke-Weiss_____ Laurie Berke-Weiss Mairead Kate Burns Berke-Weiss Law PLLC 150 East 52nd Street Suite 21002 New York, New York 10022 (212) 888-2680 laurie@berkeweisslaw.com kate@berkeweisslaw.com Attorneys for Plaintiff -7- 38984063v.1 7 of 7