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FILED: NASSAU COUNTY CLERK 04/23/2024 09:34 PM INDEX NO. 604539/2023
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 04/23/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
K. L. ORIGINALS CO., LTD.,
Index No.: 604539/2023
Plaintiff,
-against-
BCNY INTERNATIONAL, INC., SYNCLAIRE ATTORNEY’S AFFIRMATION
BRANDS, INC., FUTURE SHOE, INC., EVAN
CAGNER, GLENN UNGER, AND MICHAEL
BRUCE CAGNER,
Defendants.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Rickin Desai, Esq., an attorney duly admitted to practice law in the courts of the State of
New York, and not a party to this action, hereby affirms under the penalties of perjury as
follows:
1. I am a member of the Bar of the State of New York, the Managing Principal of
Rickin Desai Law, P.C., attorneys for K. L. Originals Co., Ltd. (“Plaintiff”) in the above-captioned
action. I submit this affidavit in support of Plaintiff’s Motion, pursuant to CPLR §2221 (the
“Motion”), the Decision and Order of the Honorable Timothy S. Driscoll, J.S.C., entered on April
1, 2024 (the “Order”), for Defendants BCNY International, Inc. (“BCNY”), Synclaire Brands, Inc.
(“Synclaire”), Future Shoe, Inc. (“Future Shoe”) BCNY, Synclaire, and Future Shoes will be
collectively be known herein as, the “Corporate Defendants”) Evan Cagner (“Evan”), Glenn Unger
(“Unger”), Michael Bruce Cagner’s (“Michael”) (Evan, Unger, and Michael will collectively be
known herein as, the “Individual Defendants”) (the Corporate Defendants and the Individual
Defendants will collectively be known herein as, “Defendants”) Motion to Dismiss the Fraudulent
Inducement Cause of Action (the “Underlying Motion”).
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2. I have personal knowledge of the facts contained in this affirmation, unless
otherwise stated.
3. On March 17, 2023, Plaintiff commenced the instant action by filing a Summons
and Complaint (“Summons and Complaint”) in this Court against BCNY, Evan, and Unger. (see
Efile Doc # 1, filed on March 17, 2023)1
4. On March 20, 2023, BCNY was served with the Summons and Complaint. (see
Efile Doc # 2-4, filed on March 21, 2023)
5. On April 12, 2023, Evan was served with the Summons and Complaint. (see Efile
Doc # 3, filed on April 14, 2023).
6. On April 12, 2023, Evan was served with the Summons and Complaint. (see Efile
Doc # 3, filed on April 14, 2023).
7. On July 6, 2023, Plaintiff filed a Consent to Change Attorneys. (see Efile Docs #
6-7, filed on July 6, 2023).
8. On July 12, 2023, Plaintiff filed an Amended Summons and Amended Complaint
and added Synclaire, Future Shoe, and Michael as named defendants. A copy of the Amended
Summons and Amended Complaint is annexed hereto as Exhibit I.
9. On October 4, 2023, Defendants filed a Motion to Dismiss. A copy of Defendants’
Motion to Dismiss is annexed hereto as Exhibit J.
10. On November 1, 2023, Plaintiff filed an Opposition to Defendants’ Motion to
Dismiss. A copy of Plaintiff’s Opposition is annexed hereto as Exhibit K.
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Plaintiff will refer to various documents efiled herein by the Doc # as if they were attached as an Exhibit in their
entirety and reserves the right to include portions of these documents in its reply, if any.
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11. On December 20, 2023, Defendants filed Reply Papers in further Support of
Defendants’ Motion to Dismiss. A copy of Defendants’ Reply Papers is annexed hereto as Exhibit
L.
12. On February 23, 2024, oral argument was held before the Court for Defendants’
Motion to Dismiss. A transcript of the oral argument is annexed hereto as Exhibit M.
13. On April 1, 2024, the Decision and Order of the Honorable Timothy S. Driscoll,
J.S.C. of Defendants’ Motion to Dismiss is annexed hereto as Exhibit N.
14. For the Court’s convenience, the following cases, which are annexed as Exhibits in
Plaintiff’s Opposition are also annexed to the instant Motion as follows.
15. In a complaint filed in the Supreme Court of the State of New York, County of New
York, Rosenthal & Rosenthal, Inc. (“Rosenthal & Rosenthal”) alleged that Defendants prepared
the submitted fraudulent financial statements to Rosenthal & Rosenthal in an attempt to obtain
certain loan proceeds, and the Rosenthal & Rosenthal discovered that BCNY and Synclaire had
been insolvent since on or about December 31, 2018. A copy of the Complaint in the case of
Rosenthal & Rosenthal, Inc., v. Evan Cagner et. al., Index No. 656710/2020 (NY. Sup. Ct., Dec.
2, 2020) (the “Rosenthal Complaint”) is annexed hereto as Exhibit O.
16. In a complaint filed in the Eastern District Court of New York, Wells Fargo Bank
(“Wells Fargo”) alleged that Defendants prepared the submitted fraudulent financial statements to
Well Fargo in an attempt to obtain certain loan proceeds, and the Wells Fargo discovered that
BCNY and Synclaire had been insolvent since on or about December 31, 2018. A copy of the
Complaint in the case of Wells Fargo Bank, National Association v. Evan Cagner, et. al., Case
2:21-cv-00559-GRB-AKT (E.D.N.Y Feb. 2, 2021) (the “Wells Fargo Complaint”) is annexed
hereto as Exhibit P.
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17. In a complaint filed in the Eastern District Court of New York, Putian Elite Industry
and Trading Co., Ltd. (“Putian”) alleged that Evan and Unger fraudulently induced Putian to enter
into agreements for Putian to manufacture and deliver goods to Defendants, despite the fact that
upon the execution of said agreements, the Corporate Defendants were insolvent. A copy of the
Complaint in the case of Putian Elite Industry and Trading Co., Ltd. v. Evan Cagner & Glenn
Unger, Case 2:21-cv-05913-JS-JMW (E.D.N.Y October 25, 2021) (the “Putian Complaint”) is
annexed hereto as Exhibit Q.
WHEREFORE, by reason of the foregoing, Plaintiff respectfully requests that Plaintiff’s
Motion be granted in its entirety and for such other and further relief as this Court deems
appropriate.
Dated: New York, New York
April 23, 2024 RICKIN DESAI LAW, P.C.
Attorneys for Plaintiff
By: _______________________________
Rickin Desai, Esq.
167 Madison Avenue
Suite 205, #3008
New York, NY 10016
Tel: (954) 328-6173
rickin@rdesailaw.com
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FILED: NASSAU COUNTY CLERK 04/23/2024 09:34 PM INDEX NO. 604539/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 04/23/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU K. L. ORIGINALS CO., LTD., Index No.: 604539/2023 Plaintiff, -against- BCNY INTERNATIONAL, INC., SYNCLAIRE ATTORNEY’S AFFIRMATION BRANDS, INC., FUTURE SHOE, INC., EVAN CAGNER, GLENN UNGER, AND MICHAEL BRUCE CAGNER, Defendants. STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) Rickin Desai, Esq., an attorney duly admitted to practice law in the courts of the State of New York, and not a party to this action, hereby affirms under the penalties of perjury as follows: 1. I am a member of the Bar of the State of New York, the Managing Principal of Rickin Desai Law, P.C., attorneys for K. L. Originals Co., Ltd. (“Plaintiff”) in the above-captioned action. I submit this affidavit in support of Plaintiff’s Motion, pursuant to CPLR §2221 (the “Motion”), the Decision and Order of the Honorable Timothy S. Driscoll, J.S.C., entered on April 1, 2024 (the “Order”), for Defendants BCNY International, Inc. (“BCNY”), Synclaire Brands, Inc. (“Synclaire”), Future Shoe, Inc. (“Future Shoe”) BCNY, Synclaire, and Future Shoes will be collectively be known herein as, the “Corporate Defendants”) Evan Cagner (“Evan”), Glenn Unger (“Unger”), Michael Bruce Cagner’s (“Michael”) (Evan, Unger, and Michael will collectively be known herein as, the “Individual Defendants”) (the Corporate Defendants and the Individual Defendants will collectively be known herein as, “Defendants”) Motion to Dismiss the Fraudulent Inducement Cause of Action (the “Underlying Motion”). 1 1 of 4 FILED: NASSAU COUNTY CLERK 04/23/2024 09:34 PM INDEX NO. 604539/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 04/23/2024 2. I have personal knowledge of the facts contained in this affirmation, unless otherwise stated. 3. On March 17, 2023, Plaintiff commenced the instant action by filing a Summons and Complaint (“Summons and Complaint”) in this Court against BCNY, Evan, and Unger. (see Efile Doc # 1, filed on March 17, 2023)1 4. On March 20, 2023, BCNY was served with the Summons and Complaint. (see Efile Doc # 2-4, filed on March 21, 2023) 5. On April 12, 2023, Evan was served with the Summons and Complaint. (see Efile Doc # 3, filed on April 14, 2023). 6. On April 12, 2023, Evan was served with the Summons and Complaint. (see Efile Doc # 3, filed on April 14, 2023). 7. On July 6, 2023, Plaintiff filed a Consent to Change Attorneys. (see Efile Docs # 6-7, filed on July 6, 2023). 8. On July 12, 2023, Plaintiff filed an Amended Summons and Amended Complaint and added Synclaire, Future Shoe, and Michael as named defendants. A copy of the Amended Summons and Amended Complaint is annexed hereto as Exhibit I. 9. On October 4, 2023, Defendants filed a Motion to Dismiss. A copy of Defendants’ Motion to Dismiss is annexed hereto as Exhibit J. 10. On November 1, 2023, Plaintiff filed an Opposition to Defendants’ Motion to Dismiss. A copy of Plaintiff’s Opposition is annexed hereto as Exhibit K. 1 Plaintiff will refer to various documents efiled herein by the Doc # as if they were attached as an Exhibit in their entirety and reserves the right to include portions of these documents in its reply, if any. 2 2 of 4 FILED: NASSAU COUNTY CLERK 04/23/2024 09:34 PM INDEX NO. 604539/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 04/23/2024 11. On December 20, 2023, Defendants filed Reply Papers in further Support of Defendants’ Motion to Dismiss. A copy of Defendants’ Reply Papers is annexed hereto as Exhibit L. 12. On February 23, 2024, oral argument was held before the Court for Defendants’ Motion to Dismiss. A transcript of the oral argument is annexed hereto as Exhibit M. 13. On April 1, 2024, the Decision and Order of the Honorable Timothy S. Driscoll, J.S.C. of Defendants’ Motion to Dismiss is annexed hereto as Exhibit N. 14. For the Court’s convenience, the following cases, which are annexed as Exhibits in Plaintiff’s Opposition are also annexed to the instant Motion as follows. 15. In a complaint filed in the Supreme Court of the State of New York, County of New York, Rosenthal & Rosenthal, Inc. (“Rosenthal & Rosenthal”) alleged that Defendants prepared the submitted fraudulent financial statements to Rosenthal & Rosenthal in an attempt to obtain certain loan proceeds, and the Rosenthal & Rosenthal discovered that BCNY and Synclaire had been insolvent since on or about December 31, 2018. A copy of the Complaint in the case of Rosenthal & Rosenthal, Inc., v. Evan Cagner et. al., Index No. 656710/2020 (NY. Sup. Ct., Dec. 2, 2020) (the “Rosenthal Complaint”) is annexed hereto as Exhibit O. 16. In a complaint filed in the Eastern District Court of New York, Wells Fargo Bank (“Wells Fargo”) alleged that Defendants prepared the submitted fraudulent financial statements to Well Fargo in an attempt to obtain certain loan proceeds, and the Wells Fargo discovered that BCNY and Synclaire had been insolvent since on or about December 31, 2018. A copy of the Complaint in the case of Wells Fargo Bank, National Association v. Evan Cagner, et. al., Case 2:21-cv-00559-GRB-AKT (E.D.N.Y Feb. 2, 2021) (the “Wells Fargo Complaint”) is annexed hereto as Exhibit P. 3 3 of 4 FILED: NASSAU COUNTY CLERK 04/23/2024 09:34 PM INDEX NO. 604539/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 04/23/2024 17. In a complaint filed in the Eastern District Court of New York, Putian Elite Industry and Trading Co., Ltd. (“Putian”) alleged that Evan and Unger fraudulently induced Putian to enter into agreements for Putian to manufacture and deliver goods to Defendants, despite the fact that upon the execution of said agreements, the Corporate Defendants were insolvent. A copy of the Complaint in the case of Putian Elite Industry and Trading Co., Ltd. v. Evan Cagner & Glenn Unger, Case 2:21-cv-05913-JS-JMW (E.D.N.Y October 25, 2021) (the “Putian Complaint”) is annexed hereto as Exhibit Q. WHEREFORE, by reason of the foregoing, Plaintiff respectfully requests that Plaintiff’s Motion be granted in its entirety and for such other and further relief as this Court deems appropriate. Dated: New York, New York April 23, 2024 RICKIN DESAI LAW, P.C. Attorneys for Plaintiff By: _______________________________ Rickin Desai, Esq. 167 Madison Avenue Suite 205, #3008 New York, NY 10016 Tel: (954) 328-6173 rickin@rdesailaw.com 4 4 of 4