Motion-Secondary: Jennifer Kay Individually and Derivatively, Joshua Cohen Individually and Derivatively v. Mitchell Banchik, Michael Asch, Mnm2 Mangagement Inc. d/b/a MNM2 MANAGEMENT, INC., M.B.R.P. Rest. Inc. d/b/a THE STUMBLE INN, Mirabi Inc. d/b/a DOWN THE HATCH, Third Ave. Rest., Inc. d/b/a JAKE’S DILEMMA, 442 Amsterdam Rest., Corp. d/b/a THE GIN MILL, Macdougal Rest. Inc. d/b/a OFF THE WAGON, 149 Second Ave. Rest. Inc. d/b/a DOWNTOWN SOCIAL, 134 West 3rd St. Rest. Inc. d/b/a 3 SHEETS, 168 Orchard St. Partners Inc. d/b/a HAIR OF THE DOG, 587 King Street Restaurant, Llc d/b/a UPTOWN SOCIAL, 23 Ann Street Restaurant Llc d/b/a d/b/a BODEGA/SHAREHOUSE, B.B.L.L. Inc. D/B/A Cleos, Kaleo Inc. D/B/A Jack & Gingers,, 2258 West Chicago Ave Partners Llc D/B/A Fatso'S LAST STAND #1,, 1982 N. Clybourn Partners Llc D/B/A Fatso'S LAST STAND #2,, 442 Amsterdam Real Estate Corp,, 300 East 76th Street Partners Llc,, 109 Macdougal Street Partners Llc,, 430 Amsterdam Partners, Llc,, 2048 West Armitage Partners Llc,, 1939 West Chicago Ave Partners Llc,, Mnm Properties, Llc,, Mb Trust 1, Mb Trust 2, Ma Trust 1, Ma Trust 2

On January 25, 2024 a Motion-Secondary was filed involving a dispute between Jennifer Kay Individually And Derivatively, Joshua Cohen Individually And Derivatively, and 109 Macdougal Street Partners Llc,, 134 West 3Rd St. Rest. Inc. D B A 3 Sheets, 149 Second Ave. Rest. Inc. D B A Downtown Social, 168 Orchard St. Partners Inc. D B A Hair Of The Dog, 1939 West Chicago Ave Partners Llc,, 1982 N. Clybourn Partners Llc D B A Fatso'S Last Stand #2,, 2048 West Armitage Partners Llc,, 2258 West Chicago Ave Partners Llc D B A Fatso'S Last Stand #1,, 23 Ann Street Restaurant Llc D B A D B A Bodega Sharehouse, 300 East 76Th Street Partners Llc,, 430 Amsterdam Partners, Llc,, 442 Amsterdam Real Estate Corp,, 442 Amsterdam Rest., Corp. D B A The Gin Mill, 587 King Street Restaurant, Llc D B A Uptown Social, B.B.L.L. Inc. D B A Cleos, Kaleo Inc. D B A Jack & Gingers,, Macdougal Rest. Inc. D B A Off The Wagon, Ma Trust 1, Ma Trust 2, M.B.R.P. Rest. Inc. D B A The Stumble Inn, Mb Trust 1, Mb Trust 2, Michael Asch, Mirabi Inc. D B A Down The Hatch, Mitchell Banchik, Mnm2 Mangagement Inc. D B A Mnm2 Management, Inc., Mnm Properties, Llc,, Third Ave. Rest., Inc. D B A Jakes Dilemma, for Commercial - Business Entity in the District Court of New York County.

Preview
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

JENNIFER KAY & JOSHUA COHEN, Individually and
Derivatively on behalf of M.B.R.P. REST. INC. d/b/a THE
STUMBLE INN, MIRABI INC. d/b/a DOWN THE HATCH, Index No.: 650380/2024
THIRD AVE. REST., INC. d/b/a JAKE’S DILEMMA, 442
AMSTERDAM REST., CORP. d/b/a THE GIN MILL, Motion Seq. No. 3
MACDOUGAL REST. INC. d/b/a OFF THE WAGON, 149
SECOND AVE. REST. INC. d/b/a DOWNTOWN SOCIAL, Hon. Mary Rosado
134 WEST 3RD ST. REST. INC. d/b/a 3 SHEETS, 168
ORCHARD ST PARTNERS INC. d/b/a HAIR OF THE Memorandum of Law in
DOG, 587 KING STREET RESTAURANT, LLC d/b/a Opposition of Defendants’
UPTOWN SOCIAL, 23 ANN STREET RESTAURANT Motion to Dismiss on
LLC d/b/a BODEGA/SHAREHOUSE, B.B.L.L. INC. d/b/a Behalf of 587 King Street
CLEOS, KALEO INC. d/b/a JACK & GINGERS, 2258 Restaurant, LLC and 23
WEST CHICAGO AVE PARTNERS LLC d/b/a FATSO’S Ann Street Restaurant
LAST STAND #1, 1982 N. CLYBOURN PARTNERS LLC LLC
d/b/a FATSO’S LAST STAND #2, 442 AMSTERDAM
REAL ESTATE CORP, 300 EAST 76TH STREET
PARTNERS LLC, 109 MACDOUGAL STREET
PARTNERS LLC, 430 AMSTERDAM PARTNERS, LLC,
2048 WEST ARMITAGE PARTNERS LLC, and 1939
WEST CHICAGO AVE PARTNERS LLC,
Plaintiffs,
v.

MITCHELL BANCHIK, MICHAEL ASCH, MNM2
MANGAGEMENT INC. d/b/a MNM2 MANAGEMENT,
INC., M.B.R.P. REST. INC. d/b/a THE STUMBLE INN,
MIRABI INC. d/b/a DOWN THE HATCH, THIRD AVE.
REST., INC. d/b/a JAKE’S DILEMMA, 442 AMSTERDAM
REST., CORP. d/b/a THE GIN MILL, MACDOUGAL
REST. INC. d/b/a OFF THE WAGON, 149 SECOND AVE.
REST. INC. d/b/a DOWNTOWN SOCIAL, 134 WEST 3RD
ST. REST. INC. d/b/a 3 SHEETS, 168 ORCHARD ST
PARTNERS INC. d/b/a HAIR OF THE DOG, 587 KING
STREET RESTAURANT, LLC d/b/a UPTOWN SOCIAL,
23 ANN STREET RESTAURANT LLC d/b/a
BODEGA/SHAREHOUSE, B.B.L.L. INC. d/b/a CLEOS,
KALEO INC. d/b/a JACK & GINGERS, 2258 WEST
CHICAGO AVE PARTNERS LLC d/b/a FATSO’S LAST
STAND #1, 1982 N. CLYBOURN PARTNERS LLC d/b/a
FATSO’S LAST STAND #2, 442 AMSTERDAM REAL
ESTATE CORP, 300 EAST 76TH STREET PARTNERS

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LLC, 109 MACDOUGAL STREET PARTNERS LLC, 430
AMSTERDAM PARTNERS, LLC, 2048 WEST
ARMITAGE PARTNERS LLC, 1939 WEST CHICAGO
AVE PARTNERS LLC, MNM PROPERTIES, LLC, “MB
TRUST 1”, “MB TRUST 2”, “MA TRUST 1”, and “MA
TRUST 2”

Defendants.

MEMORANDUM OF LAW IN OPPOSITION OF DEFENDANT’S MOTION TO
DISMISS ON BEHALF OF 587 KING STREET RESTAURANT, LLC AND 23 ANN
STREET RESTAURANT LLC

KOUTSOUDAKIS & IAKOVOU
LAW GROUP, PLLC

Andreas Koutsoudakis, Esq.
40 Wall Street, 49th Floor
New York, New York 10005
Telephone: (212) 404-8644
Facsimile: (332) 777-1884
Email: andreas@kilegal.com
Attorneys for Plaintiffs

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TABLE OF CONTENTS

Preliminary Statement……………………………………………………………………………..1

Statement of Facts…………………………………………………………………………………2

Argument………………………………………………………………………………………….2

I. This Court Has Personal Jurisdiction Over The South Carolina Companies………………2

II. Waiver of Arbitration……………………………………………………………………....9

Conclusion……………………………………………………………………………………….11

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TABLE OF AUTHORITIES
Page(s)
Cases

277 E. 7th St. Condo. v. 277 E. 7th St., LLC,
2021 N.Y. Slip Op. 30825 (N.Y. Sup. Ct. 2021)....................................................................... 11
ALP, Inc. v. Moskowitz,
204 A.D.3d 454 (2022) .............................................................................................................. 11
Aybar v. US Tires & Wheels of Queens, LLC,
211 A.D.3d 40 (2022) .................................................................................................................. 3
Breakaway Courier Corp. v. Berkshire Hathaway, Inc.,
192 A.D.3d 501, (2021) ............................................................................................................... 7
Brennan v. A.G. Becker, Inc.,
127 A.D.2d 951, 512 N.Y.S.2d 555 (1987) ............................................................................... 11
Chestnut Ridge Air, Ltd. v. 1260269 Ontario Inc.,
13 Misc. 3d 807 (Sup. Ct. 2006).................................................................................................. 4
Dembitzer v. Chera,
305 A.D.2d 531 (N.Y. App. Div. 2003) .................................................................................... 10
Fischbarg v. Doucet,
9 N.Y.3d 375 (2007) .................................................................................................................... 8
Flynn v. Labor Ready, Inc.,
6 A.D.3d 492 (N.Y. App. Div. 2004) .......................................................................................... 9
Ford Motor Co. v. Montana Eighth Jud. Dist. Ct.,
592 U.S. 351 (2021) .................................................................................................................... 6
Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 US 915 (2011) ...................................................................................................................... 3
Hyde v. Jewish Home Lifecare,
149 A.D.3d 674 (2017) ................................................................................................................ 9
LaMarca v. Pak-Mor Mfg. Co.,
95 N.Y.2d 210 (2000) .................................................................................................................. 8
Margolin v. Savage Youth the Film, LLC,
68 Misc. 3d 777 (N.Y. Sup. Ct. 2020) ......................................................................................... 3
Paradigm Mktg. Consortium, Inc. v. Yale New Haven Hosp., Inc.,
124 A.D.3d 736, 2 N.Y.S.3d 180 (2015) ..................................................................................... 7
Renren, Inc. v. XXX,
67 Misc. 3d 1219(A) (N.Y. Sup. Ct. 2020) ................................................................................. 3
WCVAWCK-Doe v. Boys & Girls Club of Greenwich, Inc.,
216 A.D.3d 1 (2023) .................................................................................................................... 2
Wien & Malkin, LLP v. Helmsley Spear, Inc.,
307 A.D.2d 808 (2003) .............................................................................................................. 11
Willer v. Kleinman,
114 A.D.3d 850 (N.Y. App. Div. 2014) ...................................................................................... 9
World–Wide Volkswagen Corp. v. Woodson,
, 444 U.S. 286, 297 ...................................................................................................................... 8

Rules

iii

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C.P.L.R. § 3211(a)(8) ..................................................................................................................... 2
CPLR 302........................................................................................................................................ 3
CPLR 302(a)(1) .......................................................................................................................... 3, 7
CPLR 3211(a) ............................................................................................................................... 12
CPLR 3211(d) ............................................................................................................................... 12
CPLR § 302(a) ................................................................................................................................ 2
CPLR §§ 301 or 302 ............................................................................................................... 2, 3, 4

Regulations

New York Codes, Rules and Regulations § 202.8-b .................................................................... 13

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Plaintiffs, by and through their attorneys, Koutsoudakis & Iakovou Law Group,

PLLC, respectfully submit this memorandum of law, together with Plaintiffs’ Amended

Complaint filed on March 15, 2024, Affirmation of Andreas Koutsoudakis, dated April 10,

2024, the Affirmation of Joshua Cohen, dated April 10, 2024, the Affirmation of Jennifer

Cohen, dated April 10, 2024, all exhibits thereto, along with all prior affirmations and exhibits

in this action, in opposition of the Defendant’s Motion To Dismiss On Behalf Of 587 King

Street Restaurant, LLC and 23 Ann Street Restaurant LLC. (Motion Seq. No. 3) the Amended

Complaint, and state as follows:

PRELIMINARY STATEMENT

Before this Court is a Motion to Dismiss filed by 587 King Street Restaurant, LLC and 23

Ann Street Restaurant LLC (together hereinafter known as the “South Carolina Bar

Defendants”). In addition, there is a pending Motion to Dismiss and/or Compel Arbitration for

M.B.R.P. Rest. Inc., Mirabi Inc., Third Ave. Rest., Inc., 442 Amsterdam Rest., Corp., Macdougal

Rest. Inc., 149 Second Ave. Rest. Inc., 134 West 3rd St. Rest. Inc., 168 Orchard St Partners Inc.

(together hereinafter known as the “New York Bar Defendants”) and Mitchell Banchik, Michael

Asch, MNM2 Management Inc. (together hereinafter known as the “Management Defendants”).

This is a shareholder action brought by minority members of the South Carolina Bar

Defendants and the New York Bar Defendants asserting 19 claims against the Management

Defendants and corporate entities (NYSCEF Doc. No. 117). Management Defendants operate and

oversee both the South Carolina Bar Defendants and New York Bar Defendants. All issues and

claims tet forth in the Amended Complaint are the same for both the South Carolina Bar

Defendants and New York Bar Defendants. However, Defendants are attempting to unnecessarily

fragment the case, separate the forums, and improperly extract the South Carolina Bar Defendants

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from the matter.

As such, Plaintiffs respectfully request that Defendant’s Motion to Dismiss On Behalf of

587 King Street Restaurant, LLC and 23 Ann Street Restaurant LLC be denied in its entirety.

STATEMENT OF FACTS

The Court is respectfully referred to the Amended Complaint (NYSCEF Doc. No. 117) for

the allegations stated therein, together with the Affirmations of Plaintiffs Jennifer Kay and Joshua

Cohen, both dated April 10, 2024, and of Plaintiffs’ Attorney Affirmation Andreas Koutsoudakis,

dated April 10, 2024.

ARGUMENT

I. THIS COURT HAS PERSONAL JURISDICTION OVER THE SOUTH
CAROLINA COMPANIES

A. Legal Standard for Motion to Dismiss Under C.P.L.R. § 3211(a)(8)
In opposing a “CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction the

plaintiff need only make a prima facie showing that the defendant was subject to the personal

jurisdiction of the court.” WCVAWCK-Doe v. Boys & Girls Club of Greenwich, Inc., 216 A.D.3d

1, 6 (2023). Furthermore, if the requisite elements under CPLR §§ 301 or 302 are satisfied, as well

as the minimum contacts test, then courts will have jurisdiction over the defendants.

Pursuant to CPLR § 301 “A court may exercise such jurisdiction over persons, property,

or status as might have been exercised heretofore.” N.Y. C.P.L.R. 301 (McKinney).

Pursuant to CPLR § 302(a), is as follows:

The “Court may exercise personal jurisdiction over any non-domiciliary or his executor or
administrator, who in person or through an agent:

(1) transacts any business within the state or contracts anywhere to supply goods or
services in the state; or . . .
(4) owns, uses or possesses any real property situated within the state. N.Y. C.P.L.R.
302(a) (McKinney).

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Under New York law “‘to determine whether a non-domiciliary may be sued in New York, the

Court first determines whether our long-arm statute (CPLR 302) confers jurisdiction over it in light

of its contacts with this State. If the defendant's relationship with New York falls within the terms

of CPLR 302, the Court determines whether the exercise of jurisdiction comports with due

process.’” Margolin v. Savage Youth the Film, LLC, 68 Misc. 3d 777, 778 (N.Y. Sup. Ct. 2020).

Moreover, “CPLR 302(a)(1) jurisdictional inquiry is twofold: under the first prong the defendant

must have conducted sufficient activities to have transacted business in the state, and under the

second prong, the claims must arise from the transactions” Aybar v. US Tires & Wheels of Queens,

LLC, 211 A.D.3d 40, 48 (2022).

In the matter at bar, Plaintiffs have exemplified and satisfied the necessary elements in

establishing the causal connection between New York and the South Carolina Bar Defendants.

The Court has jurisdiction over the South Carolina Bar Defendants and the South Carolina Bar

Defendants satisfy the minimum contacts test with New York.

B. The Plaintiffs Have Established Both General and Specific Personal
Jurisdiction and Specific Personal Jurisdiction Over the South Carolina Bar
Defendants.

Pursuant to CPLR §§ 301 and 302 this Court has personal jurisdiction over the South

Carolina Bar Defendants.

i. General Personal Jurisdiction Over the South Carolina Bar Defendants
Established Under CPLR 301
Courts have held that “a court may exercise general jurisdiction over a defendant pursuant

to CPLR § 301 on all causes of action where the defendant's ties to New York “are so ‘continuous

and systematic’ as to render them essentially at home in the forum state.” Renren, Inc. v. XXX, 67

Misc. 3d 1219(A) (N.Y. Sup. Ct. 2020), aff'd sub nom. Matter of Renren, Inc., 192 A.D.3d 539,

(2021); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 US 915, 919 (2011).

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Furthermore, “given the advances in communications [and] technology, jurisdiction pursuant to

CPLR 301 may be established through non-traditional methods. Thus, an interactive website may

constitute solicitation activity to support a finding of jurisdiction under CPLR § 301. . . . [which]

enable[s] a party to transact enormous volumes of business within a state without physically

entering it.” Chestnut Ridge Air, Ltd. v. 1260269 Ontario Inc., 13 Misc. 3d 807, 809 (Sup. Ct.

2006).

a. Facts Within Complaint Explicitly Support General Personal
Jurisdiction Over South Carolina Bar Defendants.

Defendants Banchik and Asch are the managers of the South Carolina Bar Defendants.

(See Michael Asch Aff. NYSCEF Doc. No. 102). Defendant Banchik and Asch’s management

entity, named herein, MNM2 Management Inc., a New York corporation, (“MNM2”) manages

the South Carolina Bar Defendants. MNM2 handles the marketing, accounting, and all operations

of the conglomerate entities (bars and real estate). Banchik and Asch conduct and operate MNM2

in their New York office, 300 East 76th Street, New York, NY.

Banchik and Asch, as the managers and investors of the South Carolina Bar Defendants

are continuously transacting business in New York. Banchik and Asch started building this

conglomerate in New York in 1991. Banchik and Asch are the directors and officers of the New

York Bar Defendants. Therefore, they own, operate, and transact on behalf of the following

businesses, all based out of and in New York City:

- M.B.R.P. Rest. Inc. D/B/A The Stumble Inn;
- Mirabi Inc. D/B/A Down The Hatch;
- Third Ave. Rest., Inc. D/B/A Jake’s Dilemma;
- 442 Amsterdam Rest., Corp. D/B/A The Gin Mill;
- Macdougal Rest. Inc. D/B/A Off The Wagon;
- 149 Second Ave. Rest. Inc. D/B/A Downtown Social;
- 134 West 3rd St. Rest. Inc. D/B/A 3 Sheets;
- 168 Orchard St Partners Inc. D/B/A Hair Of The Dog;
- 442 Amsterdam Real Estate Corp;

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- 300 East 76th Street Partners LLC;
- 109 Macdougal Street Partners LLC; and
- 430 Amsterdam Partners, LLC (collectively “New York Defendants”).
South Carolina has merely two bars that only came to fruition in 2018, which was over two decades

later. Therefore, it is simply unmistakable that the transactional and operational epicenter of this

entire conglomerate, including the South Carolina Bar Defendants, is in New York.

It is apparent that the South Carolina Bar Defendants would not be as successful as they

are today without the Plaintiffs and the New York Bar Defendants. New York is the nucleus of the

Eat, Drink & Be Merry brand (explained below). The New York Bar Defendants were successful

and popular for a multitude of years, so much so, that when Banchik and Asch decided to expand

their brand into a different state, many of the New York investors participated (See Kay and Cohen

Aff.). Due to the popularity of Eat Drink & Be Merry, when the South Carolina Bar Defendants

opened, the association, rapport, and direct correlation with the New York Bar Defendants allowed

for a successful launch. Thus, the South Carolina Bar Defendants would not be where they are

today without the financial support of New York residents, two being Jennifer Kay and Joshua

Cohen.

The South Carolina Bar Defendants are under the same marketing umbrella and website as

the New York and Illinois Bar Defendants, Eat Drink & Be Merry. Eat Drink & Be Merry’s address

is 300 E. 76th St Suite A3, New York, New York 10021 (See Kay and Cohen Aff.). Within the

website of each bar and restaurant there is a clear indication of a connection to all the other bars

under the Eat Drink & Be Merry umbrella and operated and managed by MNM2 Management Inc.

Therefore, regardless of the location, all bars and restaurants are established and interconnected to

the “Eat, Drink & Be Merry” brand. Moreover, even at the physical locations of certain bars, more

specifically Uptown Social, has a wall painting of the logos of all the bars and restaurants.

Furthermore, the individual bars across South Carolina and New York are intimately linked. In

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1998, Banchik and Asch opened a location with the entity name of 149 Second Ave. Rest. Inc.

Banchik and Asch named that location the “13th Step.” In 2018, Uptown Social, in South Carolina,

opened. Uptown Social was a huge success. Due to the successes, in 2023 Banchik and Asch

decided to rebrand the 13th Step and change the name to “Downtown Social.” Therefore, the

apparent nexus between the South Carolina Bar Defendants and New York undoubtedly

establishes a multitude of systematic and continuous contacts.

Mitchell Banchik, as manager of the South Carolina Bar Defendants, resides in New York

and operates business out of the New York office. On January 17, 2024, Banchik had executed a

notice of annual meetings for the South Carolina Bar Defendants to be held on January 30, 2024.

This intentional act, which is typically conducted out of New York was circulated to all members,

in both New York and South Carolina.

Finally, and as presented in the Amended Complaint, Banchik and Asch have commingled

funds to use in the South Carolina Bar Defendants that were derived from and used for business

dealings in New York.

As established and set forth herein, this financial and transactional relationship that creates

continuous and systematic ties to New York will allow this Court to assert general jurisdiction

over the South Carolina Bar Defendants.

ii. This Court Has Specific Jurisdiction Over The South Carolina Bar
Defendants

In the event this Court finds that general jurisdiction is not applicable, specific jurisdiction

is established. Typically, it is well known that “the defendant . . . must take ‘some act by which it

purposefully avails itself of the privilege of conducting activities within the forum State.’” Ford

Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 359 (2021). More specifically, and

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pursuant to CPLR 302(a)(1), this Court will have jurisdiction over the defendants in the event the

defendants have satisfied the “transacting business” prong of CPLR § 302(a)(1).

For all the businesses and real estate owned and operated by and through Mitchell Banchik,

Michael Asch, MB Trust 1, MB Trust 2, MA Trust 1, MA Trust 2, MNM Properties (New York

entity) and MNM2 Management Inc., across South Carolina, Illinois and New York, New York,

MNM Properties and MNM2 are the alter egos that manage and operate all New York, South

Carolina and Illinois Bar Defendants. Therefore, it is apparent that Banchik and Asch and their

alter-ego entities have purposely availed themselves into New York. More specifically, Banchik,

Asch, MNM2 Management, Inc. and MNM Properties have been managing, financing, and

operating all New York Bar Defendants and South Carolina Bar Defendants. See Breakaway

Courier Corp. v. Berkshire Hathaway, Inc., 192 A.D.3d 501, 502, (2021) (showing that in order

for plaintiff to establish a basis for long-arm jurisdiction plaintiff has to prove that the company

had control over the subsidiaries marketing and operational policies or that the subsidiaries were

financially dependent on the company).

This Court has jurisdiction over the South Carolina Bar Defendants due to Defendants

satisfying the “transacting business” prong of New York’s long arm statute. N.Y. C.P.L.R.

302(a)(1) (McKinney). In accordance with court rulings, the transacting business requirement

requires only a minimal quantity of activity. See Paradigm Mktg. Consortium, Inc. v. Yale New

Haven Hosp., Inc., 124 A.D.3d 736, 737, 2 N.Y.S.3d 180, 182 (2015) (“Proof of one transaction

in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York,

as long as the defendant's activities here were purposeful and there is a substantial relationship

between the transaction and the claim asserted”). As mentioned above, there are extensive and

long-term, continuous examples of Banchik, Asch and MNM2 transacting business in New York

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for the benefit of the South Carolina Bar Defendants. Moreover, “even when physical presence is

lacking, jurisdiction may still be proper if the defendant ‘on his or her own initiative ... projects

himself or herself’ into this state to engage in a ‘sustained and substantial transaction of business.’”

Fischbarg v. Doucet, 9 N.Y.3d 375, 382 (2007). That being said, even if the South Carolina Bar

Defendants are not physically present, Banchik, Asch and MNM2, the warm bodies and the

managing entity all project themselves into New York to engage in substantial business.

It is evident that there is a strong and direct correlation and engagement in substantial

business between and across the New York Bar Defendants and the South Carolina Bar

Defendants. Defendants are attempting to prove a separation between the New York and South

Carolina entities by harping on the fact that the South Carolina Bar Defendants are South Carolina

entities that transact within the state. Those facts are unpersuasive considering the consistent cross

utilization of New York resources, investors and monies originated and derived from transactions

all based out of New York.

iii. The South Carolina Bar Defendants Satisfy the Minimum Contacts Test in
New York.
In establishing specific jurisdiction, the due process element must also be satisfied. Due

process “is not satisfied unless a non-domiciliary has ‘minimum contacts’ with the forum State.”

The test for minimum contacts “rest[s] on whether a defendant's ‘conduct and connection with the

forum State’ are such that it ‘should reasonably anticipate being haled into court there.’” LaMarca

v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 216 (2000); see also World–Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 297.

As mentioned above, New York investors and Defendants Banchik and Asch are all key

contributors in operating and funding the South Carolina Bar Defendants. It is only fair and

reasonable to litigate the issues regarding both New York Defendants and South Carolina Bar

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Defendants, in one forum. Without the New York investors, Banchik and Asch, the South Carolina

Bar Defendants would fail to exist. Therefore, when establishing where to litigate, in the case at

bar, it is vital to consider the contacts between the individuals operating and controlling the South

Carolina and New York entities. As established herein and through affirmations/affidavits,

Banchik and Asch are the controlling members and shareholders as well as managers, directors

and officers of the New York Defendants and the South Carolina Bar Defendants. Banchik and

Asch are thereby the warm bodies behind each and every establishment. Therefore, the established

connection with New York is seemingly infinite and it is only reasonable and practical for this

Court to hear and decide upon the issues that are occurring across both the New York and South

Carolina entities.

II. WAIVER OF ARBITRATION
Courts have held that the determination of whether a defendant’s conduct indicates that

they waived their right to arbitrate “depends on the facts and circumstances of each particular case.

…Among the factors to be considered are the extent of the party’s participation in litigation and

conduct inconsistent with the assertion of a right to arbitrate, the delay in seeking arbitration, and

whether the other party has been prejudiced.” Willer v. Kleinman 114 A.D.3d 850, 851 (N.Y. App.

Div. 2014). Furthermore, courts have established that when determining whether a party waived

their right to arbitrate there must be “a finding that the party engaged in litigation to such an extent

as to ‘manifest a preference clearly inconsistent with [that party's] later claim that the parties

were obligated to settle their differences by arbitration and thereby elected to litigate rather than

arbitrate.’” Flynn v. Labor Ready, Inc., 6 A.D.3d 492, 493 (N.Y. App. Div. 2004); See e.g., Hyde

v. Jewish Home Lifecare, 149 A.D.3d 674 (2017) (holding defendant waived an arbitration

agreement when they failed to raise any affirmative defenses in response to plaintiff’s

commencement of the action). The Appellate Division has held that when a defendant

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affirmatively participates in a court proceedings process, that defendant then waives their right to

arbitration. In Dembitzer v. Chera, a defendant willfully and affirmatively participated in a

disclosure process during litigation; the court held that was enough to waive the desire for

arbitration. Dembitzer v. Chera, 305 A.D.2d 531 (N.Y. App. Div. 2003).

A. Management Defendants and South Carolina Bar Defendants Waived Their
Right to Arbitrate
The Management Defendants have participated in the ongoing court proceedings,

particularly in their capacities as directors, shareholders, managers, and members of the Defendant

entities. Banchik and Asch’s participation have been predominantly in the New York State

Supreme Court. Michael Asch had filed an affirmation in New York Supreme Court establishing

his managerial roles in the South Carolina Bar Defendants. Defendant’s counsel has actively

moved to pause the arbitration until the New York Supreme Court made a ruling on pending

motions. The parties that were served in JAMS, two being the South Carolina Bar Defendants,

were required to select an arbitrator by February 13, 2024. The Defendants/Petitioners failed to

comply. Furthermore, this Court ordered a stay of the South Carolina Bar Defendant’s annual

member meeting whereby alluding to the power and authority that this Court has over the South

Carolina Bar Defendants. Therefore, it is evident that the South Carolina Bar Defendant’s

operating agreements, more specifically the forum selection clause, has been waived due to

Defendants’ counsel’s continuous participation in the New York State court actions and

Defendants’ counsel’s failure to bring the associated claims through arbitration.

B. ALL CLAIMS AND DEFENDANTS ARE INEXTRICABLY
INTERTWINED

In addition to the Defendant’s apparent waiver of the forum selection clause within the

South Carolina Bar Defendant’s operating agreements, the claims that are set forth, non-arbitrable

and arbitrable, are inextricably intertwined and therefore should be resolved in a single forum. See

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ALP, Inc. v. Moskowitz, 204 A.D.3d 454, 456 (2022). The inextricably intertwined standard has

been construed as claims with the same sets of facts and legal issues. See id.; but see Wien &

Malkin, LLP v. Helmsley Spear, Inc., 307 A.D.2d 808, 809 (2003) (holding that when arbitrable

and non-arbitrable claims are emanating from different sets of facts and legal issues they are not

inextricably interviewed). Therefore, when claims are inextricably bound together such claims

should be resolved in the same forum and if a court action has already commenced then such matter

shall continue to be litigated within that court. Brennan v. A.G. Becker, Inc., 127 A.D.2d 951, 512

N.Y.S.2d 555 (1987). This standard is not only for purposes of judicial economy and convenience

of the parties but to ensure that there is an avoidance of creating an "unworkable fracture" between

the various parties to the lawsuit, prolonging the litigation, and inviting an inconsistent result from

the arbitration forum. 277 E. 7th St. Condominium v. 277 E. 7th St., 2021 N.Y. Misc. LEXIS 1118.

In 277 E. 7th St., not all the parties in relation to the claims had an arbitration clause, therefore the

court was the only forum where all the inextricably intertwined claims among the parties arising

from the Condominium project may be tried together. Id.

As established in the Amended Complaint (NYSCEF Doc. No. 117), all facts, legal

standards, legal issues, and parties are the same or substantially the same. The only differentiating

factors are the names and locations of the entities that Banchik and Asch created. The claims

brought before the Court are so interconnected that separating them into different forums will lead

to contradicting opinions and decisions based on the same facts, circumstances, and law.

Therefore, it is in the best interests of justice and judicial economy that all claims are brought

together in a single action.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request the Court deny Defendant’s

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Motion to Dismiss on Behalf of 587 King Street Restaurant, LLC and 23 Ann Street Restaurant

LLC in its entirety and grant Plaintiffs such further relief as the Court deems just and proper.

Pursuant to CPLR 3211(d) in the event that it appears to the Court from the allegations in

the amended complaint together with the affirmations submitted in opposition to Defendants

Motion to Dismiss made under CPLR 3211(a) that “facts essential to justify opposition may exist

but cannot then be stated” plaintiffs respectfully request an order of continuance on these motions

in order to permit further affidavits to be obtained and for disclosure to be had.

Dated: New York, New York
April 10, 2024
Respectfully submitted,

KOUTSOUDAKIS & IAKOVOU
LAW GROUP, PLLC

By: Andreas Koutsoudakis
Andreas Koutsoudakis, Esq.
40 Wall Street, 49th Floor
New York, New York 10005
Telephone: (212) 404-8644
Facsimile: (332) 777-1884
Email: andreas@kilegal.com
Attorneys for Plaintiffs

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CERTIFICATION OF COUNSEL

I hereby certify that the word count of this memorandum complies with the word limits of 22
New York Codes, Rules and Regulations § 202.8-b. According to the word-processing system
used to prepare this affirmation, the total word count for all printed text exclusive of the material
omitted is 3,562 words.

Andreas Koutsoudakis
Andreas Koutsoudakis, Esq.

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Case Info

Judge

Mary V. Rosado Track Judge’s New Case

Case No.

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Document Filed Date

April 10, 2024

Case Filing Date

January 25, 2024

County

Parties

109 MACDOUGAL STREET PARTNERS LLC, Defendant
134 WEST 3RD ST. REST. INC. d/b/a 3 SHEETS Defendant
149 SECOND AVE. REST. INC. d/b/a DOWNTOWN SOCIAL Defendant
168 ORCHARD ST. PARTNERS INC. d/b/a HAIR OF THE DOG Defendant
1939 WEST CHICAGO AVE PARTNERS LLC, Defendant
1982 N. CLYBOURN PARTNERS LLC d/b/a FATSO'S LAST STAND #2, Defendant
2048 WEST ARMITAGE PARTNERS LLC, Defendant
2258 WEST CHICAGO AVE PARTNERS LLC d/b/a FATSO'S LAST STAND #1, Defendant
23 ANN STREET RESTAURANT LLC d/b/a d/b/a BODEGA/SHAREHOUSE Defendant
300 EAST 76TH STREET PARTNERS LLC, Defendant
430 AMSTERDAM PARTNERS, LLC, Defendant
442 AMSTERDAM REAL ESTATE CORP, Defendant
442 AMSTERDAM REST., CORP. d/b/a THE GIN MILL Defendant
587 KING STREET RESTAURANT, LLC d/b/a UPTOWN SOCIAL Defendant
BAEK, HYUN JEONG Attorney for the Defendant
B.B.L.L. INC. d/b/a CLEOS, KALEO INC. d/b/a JACK & GINGERS, Defendant
Jennifer Kay Individually and Derivatively Plaintiff
Joshua Cohen Individually and Derivatively Plaintiff
KOUTSOUDAKIS, ANDREAS Attorney for the Plaintiff
LEON, MICHAEL A. Attorney for the Plaintiff
MACDOUGAL REST. INC. d/b/a OFF THE WAGON Defendant
Mahler, Peter A Attorney for the Defendant
MA TRUST 1 Defendant
MA TRUST 2 Defendant
M.B.R.P. REST. INC. d/b/a THE STUMBLE INN Defendant
MB TRUST 1 Defendant
MB TRUST 2 Defendant
Michael Asch Defendant
MIRABI INC. d/b/a DOWN THE HATCH Defendant
Mitchell Banchik Defendant
MNM2 MANGAGEMENT INC. d/b/a MNM2 MANAGEMENT, INC. Defendant
MNM PROPERTIES, LLC, Defendant
SLUKA, PETER JONATHAN Attorney for the Defendant
THIRD AVE. REST., INC. d/b/a JAKES DILEMMA Defendant

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