Preview
FILED: NASSAU COUNTY CLERK 04/23/2024 09:34 PM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 04/23/2024
EXHIBIT L
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
--------------------------------------------------------------------------X
K.L. ORIGINALS, LTD.,
Plaintiff, Index No.: 604539/2023
-against- Motion Seq. # 02
BCNY INTERNATIONAL, INC., SYNCLAIRE BRANDS,
INC., FUTURE SHOE, INC., EVAN CAGNER, GLENN
UNGER, AND MICHAEL BRUCE CAGNER,
Defendants.
--------------------------------------------------------------------------X
REPLY MEMORAUNDUM OF LAW FURTHER SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS THE AMENDED VERIFIED COMPLAINT
PRELIMINARY STATEMENT
This reply memorandum of law is respectfully submitted by defendants BCNY
International, Inc. (“BCNY”), Synclaire Brands, Inc.(“Synclaire”), Future Shoe, Inc. (“Future
Shoe”) (BCNY, Synclaire and Future Shoe, together the “Corporate Defendants”), Evan Cagner,
Glenn Unger (“Unger”) and Michael Bruce Cagner (Evan Cagner, Unger and Michael Bruce
Cagner collectively referred to as the “Individual Defendants”) in further support of their motion
to dismiss the amended verified complaint filed by plaintiff K. L. Originals Co., Ltd. (“Plaintiff”)
dated July 12, 2023 [ECF Dkt. No. 11] (the “Amended Complaint”) pursuant to CPLR §§
3211(a)(1) and (7) (the “Motion”).
Although Plaintiff correctly states that the Court should “accept the facts as alleged in the
complaint as true,” [ECF Dkt. No. 65], the Amended Complaint is almost completely devoid of
facts or simply misstates facts that are actually belied by the very documentary evidence
submitted by Plaintiff in opposition to the Motion. The Amended Complaint is replete with
statements based on unproven allegations made by third-parties in other complaints that were
1 of 13
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
dismissed with prejudice. Simply because a Plaintiff alleges something in another complaint,
which is repeated by Plaintiff here in the Amended Complaint, does not magically transform it
into a fact, particular where those unproven allegations were dismissed with prejudice.
Notably here, Plaintiff admits that “The instant action is based on unpaid shoes and other
related material and/or merchandise, which were manufactured and delivered by Plaintiff to
BCNY ...”. See Plaintiff’s Memo of Law in Opp. at page 2 (emphasis added) [ECF Dkt. No. 65].
Nevertheless, Plaintiff attempts to transform what should be a two-party dispute, at best, to extort
money from third-parties, relying exclusively on unproven allegations dismissed with prejudice
set forth in unrelated complaints and ignoring the almost decade long relationship it had with
BCNY.
Plaintiff also engages in creative sophistry by describing its claims in this case as being
predicated on a “fraudulent scheme” purportedly involving assignment of assets and liabilities to
allegedly “newly formed” related entities. In actuality, neither Defendant Synclaire nor
Defendant Future Shoe was “newly formed” at the time of the transactions at issue in 2018, with
Synclaire being formed in 2005 and Future Shoe in 2015, facts both easily discoverable from the
New York Secretary of State’s website, but ignored by Plaintiff. See Exhibits A and B to the
Accompanying Affirmation of Neal W. Cohen in Further Support of Defendants’ Motion to
Dismiss.
Not surprisingly, Plaintiff fails to include anything in either its Opposition to the Motion,
or the Tretiakov Affidavit, which sets forth with the requisite detail any actual representation
made by any of the Corporate Defendants or Individual Defendants, which would give rise to the
causes of action set forth in the Amended Complaint. Instead, in a contrived effort to
2
2 of 13
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
manufacture a fiduciary relationship where none exists, Plaintiff cites to precedents that do not
actually stand for the legal principles it alleges.
For the reasons set forth in the Motion and below, the Amended Complaint should be
dismissed in its entirety.
ARGUMENT
I. THE AMENDED COMPLAINT SHOULD BE DISMISSED
A. The Fraudulent Inducement Claims Are Deficient
Despite its Opposition to the Motion, Plaintiff’s Amended Complaint still fails to
properly state a cause of action for fraudulent inducement. As Plaintiff readily admits, to
establish a cause of action based on a misrepresentation or fraud, it must state in detail the
circumstances constituting the wrong. CPLR § 3016(b); Mandarin Trading Ltd. v. Wildenstein,
16 NY3d 173, 178 (2011). Although the requirement to state with specificity can be overlooked
in situations where it may seemingly be impossible given that those details are peculiarly within
the knowledge of the opposing party, this is not such a case.
Here, Plaintiff’s claim for fraudulent inducement is simply that the “Defendants made
representations regarding their ability to pay” for goods they allegedly ordered from Plaintiff.
Plaintiff’s Memo of Law in Opp. at page 6 [ECF Dkt. No. 65]. Plaintiff does not identify with
any, let alone sufficient, detail who made these purported representations, when they were made
and what was actually represented. This is because no such representations were actually made
by any of the Defendants. Instead, Plaintiff seeks to excuse its pleading failures by hiding
behind the self-serving and conclusory statement that it could not have known whether any or all
of the Defendants were insolvent when the purported orders in question were placed. Plaintiff
does not offer any explanation for why it could not have known about the alleged insolvency that
3
3 of 13
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
serves as the basis for its allegations or how this warrants excusing Plaintiff’s pleading failures.
Notably, Plaintiff does not state in the Amended Complaint that it performed due diligence or
asked for and received financial information from any of the Defendants that was intentionally
misstated.
Rather than relying on facts, Plaintiff’s opposition to the Motion seeks to “supplement”
the multitude of defects associated with its Amended Complaint, albeit unsuccessfully, by
submitting the affidavit of Arthur Tretiakov a so-called agent of Plaintiff. [ECF Dkt. No. 54] By
his own admission, Mr. Tretiakov has no first-hand knowledge of anything stated under oath in
his affidavit. In fact, the entirety of his knowledge “of the facts of this action”, is based on a
review of the documents attached to his Affidavit. [ECF Dkt. No. 54]
Astonishingly, Mr. Tretiakov ignores the very documents he purportedly relies upon and
serve as the sole basis of his knowledge. At paragraph 14 of the Tretiakov Affidavit, he swears
under oath that “Plaintiff entered into a series of agreements with the Corporate Defendants to
supply and deliver the shoes and other related material and/or merchandise …” and relies on the
invoices attached thereto as Exhibit A. (emphasis added) [ECF Dkt. No. 54]. Even the most
cursory review of those invoices reveals that only BCNY was identified as a purported buyer.
Not surprisingly, none of the other Corporate Defendants or Individual Defendants are
mentioned anywhere in those invoices. Given this incontrovertible documentary evidence,
which, at best, establishes nothing more than Plaintiff invoiced BCNY for the goods identified
therein, it begs the question how or why any Defendant other than BCNY would have or could
have made any representation regarding an ability to pay Plaintiff such invoices? Plaintiff does
not point to any representation, let alone a misrepresentation, made by any Corporate Defendant
or Individual Defendant in this regard. Accordingly, BCNY is the only entity Plaintiff ever did
4
4 of 13
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
business with regarding the transactions in question as disclosed by the invoices attached to
Plaintiff’s Opposition as Exhibit A.
Given its repeated allegations that such purported representations regarding solvency
were made by all Defendants as a whole, Plaintiff should not be allowed to shield itself from the
procedural requirements of properly pleading in detail the specifics of such representations.
To avoid the inevitable, Plaintiff’s opposition states that such information regarding the
alleged misrepresentations could only be known to the Defendants and thus could not be
included in the Amended Complaint. This defies logic. Certainly, Plaintiff knows what
representations, if any, were made by said Defendants. Rather than stating the actual details of
such representations, such as identifying who specifically made such representations, when,
where they were made, and what was actually represented, Plaintiff instead makes combined
allegations against all of the Corporate Defendants and Individual Defendants, and relies on
invoices naming only BCNY as a Buyer as well as unproven and dismissed allegations in other
complaints. “[L]egal conclusions couched as factual allegations are not facts and cannot
substitute for facts.” Cornell v. Assicurazioni Generali S.p.A., No. 97 Civ. 2262, 2000 U.S. Dist.
LEXIS 11004, at *5 (S.D.N.Y. Aug. 7, 2000); see also Papasan v. Allain, 478 U.S. 265, 286
(1986) (noting that courts “are not bound to accept as true a legal conclusion couched as a factual
allegation”).
This is insufficient as a matter of law and there is no justification to excuse Plaintiff’s
failure to properly plead in this case.
B. There is no Basis on Which to Pierce the Corporate Veil
to Impose Liability Against the Individual Defendants
Plaintiff also attempts to get around its pleading burden in connection with its piercing
the corporate veil claims by once again stating that it would be impossible to state in detail the
5
5 of 13
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
circumstances constituting the alleged fraud, given that the concrete facts are peculiarly within
the knowledge of the Defendants. However, Plaintiff offers nothing to establish that their causes
of action are otherwise valid, that it is impossible for them to detail the very allegations they
allege were made, by whom, or what concrete facts are solely within the knowledge of the
Defendants and as a whole, that would prevent them from doing so.
Instead, Plaintiff merely parrots the statutory elements of the various theories of piercing
the corporate veil and rely, once again, on unproven and dismissed allegations contained in other
complaints. Incredibly, Plaintiff seemingly and improperly attempts to rely on those unproven
and dismissed allegations as facts and basis for their own claims. See, e.g., Cornell v.
Assicurazioni Generali S.p.A., 2000 U.S. Dist. LEXIS 11004, at *5; Papasan v. Allain, 478 U.S.
at 286. To wit, Plaintiff states,
There are key allegations contained in the Rosenthal Complaint, the
Wells Fargo Complaint, and the Putian Complaint to show that the
Individual Defendants have a history of committing fraud upon both
financiers and manufacturers with regard to the financial status and
creditworthiness of the Corporate Defendants in order to procure
financing or goods.
Plaintiff’s Memo of Law in Opp. at page 9 [ECF Dkt. No. 65]. Plaintiff portrays these unproven
and dismissed allegations as facts (e.g., “Defendants have a history of committing fraud ….”) in
an attempt to remedy their own pleading deficiencies. But allegations are not facts and, without
more, do not justify Plaintiff’s failures to properly plead here.
C. Plaintiff’s Breach of Contract Claim is Identical to Its Fraudulent
Inducement Claim
Plaintiff attempts to use a smoke screen regarding present intent, and suing third-parties,
to overshadow the fact that its breach of contract claim is identical to its fraudulent inducement
claim and must be dismissed.
6
6 of 13
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
The entirety of Plaintiff’s argument in this regard is as follows:
In the instant action, the fact that was present during the execution
of the Agreements, which Defendants misrepresented was
Defendants’ financial viability and creditworthiness. The first of the
Agreement [sic] was entered into in or around May 2019; however,
there is evidence to show that the Corporate Defendants were
insolvent since 2018. Thus, when the Corporate Defendants entered
into the Agreements, the Individual Defendants had full knowledge
of the Corporate Defendants’ inability to pay for the Goods.
Plaintiff’s Memo of Law in Opp. at page 12 [ECF Dkt. No. 65]. Both the breach of contract cause
of action and the fraudulent inducement causes action are alleged against all Corporate Defendants
and Individual Defendants. Despite repeatedly stating throughout its opposition that it cannot
specify what representations were made by which specific Corporate Defendants or Individual
Defendants which are the basis of its claims, somehow, in support of this argument, Plaintiff now
alleges, without providing any detail, that “during the execution of the Agreements, Defendants
misrepresented . . . Defendants’ financial viability and creditworthiness.” Id. [ECF Dkt. No. 65].
The only so-called “agreements” Plaintiff can and does point to are the invoices annexed as Exhibit
A to the Tretiakov Affidavit, which only name BCNY as a Buyer. [ECF Dkt. No. 56].
Where a fraud claim arises from the same facts as an accompanying contract claim, seeks
identical damages and does not allege a breach of any duty collateral to or independent of the
parties’ agreements, it is subject to dismissal as redundant of the contract claim. Cronos Group
Ltd. v. XComIP, LLC, 156 A.D.3d 54, 62-63, (1st Dep’t 2017); see also Havell Capital Enhanced
Mun. Income Fund, L.P. v. Citibank, N.A., 84 A.D.3d 588, 589 (1st Dep’t 2011). Where a fraud
claim is supported by allegations that the defendants “misrepresented . . . their intentions with
respect to the manner” in which their contractual duties would be performed, it is appropriately
dismissed as duplicative of the breach of contract claim because the fraud is premised on the same
facts as those that compose the contract claim, the obligations allegedly breached are not collateral
7
7 of 13
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
to those imposed by the contract, and the damages sought are identical to those recoverable under
the contract cause of action. TJ PRP LLC v. Rag & Bone Holdings LLC, 2018 NY Misc. LEXIS
3368, at *8 (Sup. Ct. N.Y. Cty. 2018); see also Cronos Group Ltd., 156 A.D.3d at 62-63 (quoting
Financial Structures Ltd. v. UBS AG, 77 A.D.3d 417, 419 (1st Dep’t 2010)). Moreover, “[W]hen
a fraud claim would only entitle the plaintiff to the very same damages that are recoverable on its
breach of contract claim, the claim should be dismissed as duplicative” MBIA Ins. Corp. v. Credit
Suisse Sec. (USA) LLC, 2017 NY Misc. LEXIS 1067, at *52-53 (Sup. Ct. N.Y. Cty. 2017).
In this case, the fraudulent inducement claim is solely based on the unsupported allegation
that the Corporate Defendants and the Individual Defendants misrepresented their ability to be
able perform their contractual duties and the exact same damages are alleged for all causes of
action, including the fraudulent inducement and breach of contract claims.
Thus, the fraudulent inducement cause of action is duplicative of the breach of contract
cause of action and should be dismissed.
D. The Amended Complaint Fails to State a Claim for Account Stated
Plaintiff’s opposition gives short shrift to its failure to properly allege a cause of action
for an account stated. The entirety of Plaintiff’s opposition in this regard is that, based on its own
self-serving assessment, there are sufficient allegations to pierce the corporate veil (which there
are not) and thus the causes of action for breach of contract, action for payment for goods
delivered, and account stated are properly alleged against the Defendants other than BCNY.
This argument completely ignores that the Amended Complaint baldly asserts that the
Plaintiff “rendered to Defendants, full and true accounts of the indebtedness owing by the
Defendants as a result of the Agreements, in an amount as hereinabove set forth which account
statements were delivered to and accepted without objection by [all] Defendants.” (Amended
8
8 of 13
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
Complaint at ¶ 70). As set forth in greater detail in the Motion, however, such allegation lacks
credulity and defies logic given that the invoices at issue (see Exhibit A) [ECF Dkt. No. 56] only
name BCNY. Because an account stated “assumes the existence of some indebtedness between
the parties, or an express agreement to treat the statement as an account stated,” it “cannot be
used to create liability where none otherwise exists.” M. Paladino, Inc. v. J. Lucchese & Son
Contracting Corp., 247 A.D.2d 515, 516 (2d Dep’t 1998). Given Plaintiff’s own admission that
the only transactions at issue were, at best, between it and BCNY, as shown in Exhibit B to the
Tretiakov Affidavit, Plaintiff’s cause of action for an account stated must be dismissed as to all
defendants other than BCNY.
E. The Amended Complaint Fails to State a Claim for Unjust Enrichment
Once again, Plaintiff’s opposition glosses over its failure to properly plead in connection
with its unjust enrichment cause of action. Instead, Plaintiff attempts to overcome its failure by,
somewhat illogically, consolidating its claims for breach of constructive trust, unjust enrichment,
conversion, and breach of fiduciary duty, without any explanation. Each cause of action must
and should stand on its own.
A cause of action for unjust enrichment is not available where, as here, it duplicates, or
replaces, a conventional contract claim. Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790
(2012). Unjust enrichment is available only in unusual situations when, though a defendant has
not breached a contract, circumstances create an equitable obligation running from the defendant
to the plaintiff. Id.
Here, the Amended Complaint fails to sufficiently plead a claim for unjust enrichment
against the Defendants as it simply restates the breach of contract claim, which, in and of itself,
is insufficient to establish such liability against the Defendants. Notably, the Amended
9
9 of 13
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
Complaint fails to include any allegations that the Defendants were “enriched” or that it would
be “against equity and good conscience” to permit the Defendants to retain that which Plaintiff is
seeking to recover in its breach of contract claim.
Thus, Plaintiff’s unjust enrichment claim should be dismissed as against all Defendants.
F. The Amended Complaint Fails to State a Claim for Breach of Fiduciary Duty
To recover damages for breach of fiduciary duty, Plaintiff must allege with specificity (1)
the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages
directly caused by the defendant’s misconduct. Rut v. Young Adult Inst., Inc., 74 A.D.3d 776,
777 (2d Dep’t 2010). For the first time, in Plaintiff’s opposition rather than its Amended
Complaint, Plaintiff purports to allege the nature, extent and possible existence of fiduciary
relationship. However, Plaintiff does nothing more than allege a conventional business
relationship in seeking to manufacture a fiduciary relationship where none exists. Plaintiff also
fails to make a showing of special circumstances that could transform the alleged conventional
business relationship into a fiduciary one.
Instead, Plaintiff relies on Exhibit B to the Tretiakov Affidavit, consisting of an email
exchange between Defendant Unger and Plaintiff in an unsuccessful attempt to create a fiduciary
relationship. In this email, Mr. Unger responds to Plaintiff’s email inquiry and simply states
that, “When the customers reopen and they start accepting goods we should be able to give you a
better idea of when payments can start and how much you can expect.” [ECF Dkt. No. 57] It is
patently clear that in this email, Mr. Unger made no representations of any kind. Nevertheless,
Plaintiff seeks to use this email as evidence that: (1) it delivered the goods in question to all of
the Corporate Defendants, rather than just BCNY (the only entity named in the invoices at issue),
and (2) BCNY’s customers referenced already made full and final payment for said goods to all
10
10 of 13
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
of the Corporate Defendants. This is a complete exaggeration and inaccurate reading of Mr.
Unger’s email.
Plaintiff then seeks to use its incorrect description of Mr. Unger’s email as a basis for
transforming the possible future payments by BCNY’s customers to somehow create trust funds
and/or to establish a constructive trust. This is absurd and without any factual or legal support.
Regardless, the Amended Complaint still fails to properly allege the existence of a
constructive trust. Conspicuously absent from the Amended Complaint and Plaintiff’s opposition
to the Motion is any allegation of an express or implied promise by the Corporate Defendants or
the Individual Defendants, and, most importantly, a transfer made by Plaintiff in reliance on
such promise. There is no promise of any kind made by Mr. Unger in Exhibit B and Plaintiff
does not make any allegation that it relied on such non-existent promise to transfer anything to
the Corporate Defendants or Individual Defendants, other than what may have already been
transferred to BCNY.
This in and of itself is a sufficient basis to dismiss this cause of action.
Nevertheless, Plaintiff attempts to convince this Court that a fiduciary relationship exists
in this case by citing to the case of Billings v Shaw, 209 N.Y. 265, 282-283 (1913), for the
proposition that directors of corporations act in a fiduciary capacity and as trustees and are
strictly accountable to the creditors or stockholders of the corporation for their action. However,
even the most cursory reading of the Billings case reveals that it has nothing to do with third-
party creditors of a corporation. Billings was an action brought by the receiver of a stone supply
company to recover from the defendant directors amounts received by them individually for the
ultimate benefit of the stockholders and at the request of other stockholders. The Billings Court
explained, and Plaintiff astonishingly disregards here, that: (1) all acts of a director in his own
11
11 of 13
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
behalf when his personal interest is in conflict with that of the corporation are invalid at the
election of the corporation; and (2) the law does not stop to inquire whether the contract or
transaction was fair or unfair -- it stops the inquiry when the relation is disclosed, and sets aside
the transaction or refuses to enforce it, at the instance of the party whom the fiduciary undertook
to represent, without undertaking to deal with the question of abstract justice in the particular
case.
Clearly, the Billings case does not stand for the overly broad proposition that Plaintiff
asserts and there is no basis sufficiently alleged in the Amended Complaint or Plaintiff’s
Opposition to establish any fiduciary duty in this case.
G. The Amended Complaint Fails to State a Claim for Conversion
Plaintiff’s claim for conversion is based solely on its artifice of the existence of trust
funds in this matter. For the reasons set forth above and in the Motion, the Amended Complaint
fails to establish that any such trust was created or existed as between Plaintiff and any of the
Defendants as a matter of law. Instead, Plaintiff has merely alleged, based solely on its
incredible and incorrect reading of Exhibit B, that it has a right to payment for goods it allegedly
sold to BCNY, which, in and of itself, does not give rise to a claim for conversion against any of
the Defendants in this case. See Selinger Enters., Inc. v. Cassuto, 50 A.D.3d 766, 768 (2d Dep’t
2008).
As such, Plaintiff’s claim for conversion should be dismissed with prejudice.
12
12 of 13
FILED: NASSAU COUNTY CLERK 04/23/2024
12/20/2023 09:34
07:23 PM
AM INDEX NO. 604539/2023
NYSCEF DOC. NO. 96
76 RECEIVED NYSCEF: 04/23/2024
12/20/2023
CONCLUSION
For all of the foregoing reasons, Plaintiff respectfully requests that this Court issue an
order to granting Defendants’ motion to dismiss the Amended Complaint with prejudice,
together with such other and further relief this Court deems just, proper and equitable.
Dated: New York, New York
December 20, 2023 HALPERIN BATTAGLIA BENZIJA, LLP
Counsel to all Defendants
By: /s/ Neal W. Cohen
Neal W. Cohen, Esq.
Scott A. Ziluck, Esq.
Matthew T. Murray, Esq.
40 Wall Street, 37th Floor
New York, New York 10005
(212)765-9100
ncohen@halperinlaw.net
sziluck@halperinlaw.net
mmurray@halperinlaw.net
Word Count Certification
Pursuant to Section 202.8-b of the Uniform Civil Rules for the Supreme Court, the
undersigned counsel who has filed the document, relying on the word count of the word-processing
system used to prepare the document, certifies that the number of words in the document is 3621
and that the document complies with the word count limit of subsection (a)(i) of said rule.
Dated: December 20, 2023
s/Neal W Cohen
Neal W. Cohen
HALPERIN BATTAGLIA BENZIJA, LLP
Counsel to all Defendants
40 Wall Street, 37th Floor
New York, New York 10005
(212) 765-9100
ncohen@halperinlaw.net
13
13 of 13
Preview
FILED: NASSAU COUNTY CLERK 04/23/2024 09:34 PM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 04/23/2024 EXHIBIT L FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------------------------------------------X K.L. ORIGINALS, LTD., Plaintiff, Index No.: 604539/2023 -against- Motion Seq. # 02 BCNY INTERNATIONAL, INC., SYNCLAIRE BRANDS, INC., FUTURE SHOE, INC., EVAN CAGNER, GLENN UNGER, AND MICHAEL BRUCE CAGNER, Defendants. --------------------------------------------------------------------------X REPLY MEMORAUNDUM OF LAW FURTHER SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE AMENDED VERIFIED COMPLAINT PRELIMINARY STATEMENT This reply memorandum of law is respectfully submitted by defendants BCNY International, Inc. (“BCNY”), Synclaire Brands, Inc.(“Synclaire”), Future Shoe, Inc. (“Future Shoe”) (BCNY, Synclaire and Future Shoe, together the “Corporate Defendants”), Evan Cagner, Glenn Unger (“Unger”) and Michael Bruce Cagner (Evan Cagner, Unger and Michael Bruce Cagner collectively referred to as the “Individual Defendants”) in further support of their motion to dismiss the amended verified complaint filed by plaintiff K. L. Originals Co., Ltd. (“Plaintiff”) dated July 12, 2023 [ECF Dkt. No. 11] (the “Amended Complaint”) pursuant to CPLR §§ 3211(a)(1) and (7) (the “Motion”). Although Plaintiff correctly states that the Court should “accept the facts as alleged in the complaint as true,” [ECF Dkt. No. 65], the Amended Complaint is almost completely devoid of facts or simply misstates facts that are actually belied by the very documentary evidence submitted by Plaintiff in opposition to the Motion. The Amended Complaint is replete with statements based on unproven allegations made by third-parties in other complaints that were 1 of 13 FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 dismissed with prejudice. Simply because a Plaintiff alleges something in another complaint, which is repeated by Plaintiff here in the Amended Complaint, does not magically transform it into a fact, particular where those unproven allegations were dismissed with prejudice. Notably here, Plaintiff admits that “The instant action is based on unpaid shoes and other related material and/or merchandise, which were manufactured and delivered by Plaintiff to BCNY ...”. See Plaintiff’s Memo of Law in Opp. at page 2 (emphasis added) [ECF Dkt. No. 65]. Nevertheless, Plaintiff attempts to transform what should be a two-party dispute, at best, to extort money from third-parties, relying exclusively on unproven allegations dismissed with prejudice set forth in unrelated complaints and ignoring the almost decade long relationship it had with BCNY. Plaintiff also engages in creative sophistry by describing its claims in this case as being predicated on a “fraudulent scheme” purportedly involving assignment of assets and liabilities to allegedly “newly formed” related entities. In actuality, neither Defendant Synclaire nor Defendant Future Shoe was “newly formed” at the time of the transactions at issue in 2018, with Synclaire being formed in 2005 and Future Shoe in 2015, facts both easily discoverable from the New York Secretary of State’s website, but ignored by Plaintiff. See Exhibits A and B to the Accompanying Affirmation of Neal W. Cohen in Further Support of Defendants’ Motion to Dismiss. Not surprisingly, Plaintiff fails to include anything in either its Opposition to the Motion, or the Tretiakov Affidavit, which sets forth with the requisite detail any actual representation made by any of the Corporate Defendants or Individual Defendants, which would give rise to the causes of action set forth in the Amended Complaint. Instead, in a contrived effort to 2 2 of 13 FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 manufacture a fiduciary relationship where none exists, Plaintiff cites to precedents that do not actually stand for the legal principles it alleges. For the reasons set forth in the Motion and below, the Amended Complaint should be dismissed in its entirety. ARGUMENT I. THE AMENDED COMPLAINT SHOULD BE DISMISSED A. The Fraudulent Inducement Claims Are Deficient Despite its Opposition to the Motion, Plaintiff’s Amended Complaint still fails to properly state a cause of action for fraudulent inducement. As Plaintiff readily admits, to establish a cause of action based on a misrepresentation or fraud, it must state in detail the circumstances constituting the wrong. CPLR § 3016(b); Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 178 (2011). Although the requirement to state with specificity can be overlooked in situations where it may seemingly be impossible given that those details are peculiarly within the knowledge of the opposing party, this is not such a case. Here, Plaintiff’s claim for fraudulent inducement is simply that the “Defendants made representations regarding their ability to pay” for goods they allegedly ordered from Plaintiff. Plaintiff’s Memo of Law in Opp. at page 6 [ECF Dkt. No. 65]. Plaintiff does not identify with any, let alone sufficient, detail who made these purported representations, when they were made and what was actually represented. This is because no such representations were actually made by any of the Defendants. Instead, Plaintiff seeks to excuse its pleading failures by hiding behind the self-serving and conclusory statement that it could not have known whether any or all of the Defendants were insolvent when the purported orders in question were placed. Plaintiff does not offer any explanation for why it could not have known about the alleged insolvency that 3 3 of 13 FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 serves as the basis for its allegations or how this warrants excusing Plaintiff’s pleading failures. Notably, Plaintiff does not state in the Amended Complaint that it performed due diligence or asked for and received financial information from any of the Defendants that was intentionally misstated. Rather than relying on facts, Plaintiff’s opposition to the Motion seeks to “supplement” the multitude of defects associated with its Amended Complaint, albeit unsuccessfully, by submitting the affidavit of Arthur Tretiakov a so-called agent of Plaintiff. [ECF Dkt. No. 54] By his own admission, Mr. Tretiakov has no first-hand knowledge of anything stated under oath in his affidavit. In fact, the entirety of his knowledge “of the facts of this action”, is based on a review of the documents attached to his Affidavit. [ECF Dkt. No. 54] Astonishingly, Mr. Tretiakov ignores the very documents he purportedly relies upon and serve as the sole basis of his knowledge. At paragraph 14 of the Tretiakov Affidavit, he swears under oath that “Plaintiff entered into a series of agreements with the Corporate Defendants to supply and deliver the shoes and other related material and/or merchandise …” and relies on the invoices attached thereto as Exhibit A. (emphasis added) [ECF Dkt. No. 54]. Even the most cursory review of those invoices reveals that only BCNY was identified as a purported buyer. Not surprisingly, none of the other Corporate Defendants or Individual Defendants are mentioned anywhere in those invoices. Given this incontrovertible documentary evidence, which, at best, establishes nothing more than Plaintiff invoiced BCNY for the goods identified therein, it begs the question how or why any Defendant other than BCNY would have or could have made any representation regarding an ability to pay Plaintiff such invoices? Plaintiff does not point to any representation, let alone a misrepresentation, made by any Corporate Defendant or Individual Defendant in this regard. Accordingly, BCNY is the only entity Plaintiff ever did 4 4 of 13 FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 business with regarding the transactions in question as disclosed by the invoices attached to Plaintiff’s Opposition as Exhibit A. Given its repeated allegations that such purported representations regarding solvency were made by all Defendants as a whole, Plaintiff should not be allowed to shield itself from the procedural requirements of properly pleading in detail the specifics of such representations. To avoid the inevitable, Plaintiff’s opposition states that such information regarding the alleged misrepresentations could only be known to the Defendants and thus could not be included in the Amended Complaint. This defies logic. Certainly, Plaintiff knows what representations, if any, were made by said Defendants. Rather than stating the actual details of such representations, such as identifying who specifically made such representations, when, where they were made, and what was actually represented, Plaintiff instead makes combined allegations against all of the Corporate Defendants and Individual Defendants, and relies on invoices naming only BCNY as a Buyer as well as unproven and dismissed allegations in other complaints. “[L]egal conclusions couched as factual allegations are not facts and cannot substitute for facts.” Cornell v. Assicurazioni Generali S.p.A., No. 97 Civ. 2262, 2000 U.S. Dist. LEXIS 11004, at *5 (S.D.N.Y. Aug. 7, 2000); see also Papasan v. Allain, 478 U.S. 265, 286 (1986) (noting that courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). This is insufficient as a matter of law and there is no justification to excuse Plaintiff’s failure to properly plead in this case. B. There is no Basis on Which to Pierce the Corporate Veil to Impose Liability Against the Individual Defendants Plaintiff also attempts to get around its pleading burden in connection with its piercing the corporate veil claims by once again stating that it would be impossible to state in detail the 5 5 of 13 FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 circumstances constituting the alleged fraud, given that the concrete facts are peculiarly within the knowledge of the Defendants. However, Plaintiff offers nothing to establish that their causes of action are otherwise valid, that it is impossible for them to detail the very allegations they allege were made, by whom, or what concrete facts are solely within the knowledge of the Defendants and as a whole, that would prevent them from doing so. Instead, Plaintiff merely parrots the statutory elements of the various theories of piercing the corporate veil and rely, once again, on unproven and dismissed allegations contained in other complaints. Incredibly, Plaintiff seemingly and improperly attempts to rely on those unproven and dismissed allegations as facts and basis for their own claims. See, e.g., Cornell v. Assicurazioni Generali S.p.A., 2000 U.S. Dist. LEXIS 11004, at *5; Papasan v. Allain, 478 U.S. at 286. To wit, Plaintiff states, There are key allegations contained in the Rosenthal Complaint, the Wells Fargo Complaint, and the Putian Complaint to show that the Individual Defendants have a history of committing fraud upon both financiers and manufacturers with regard to the financial status and creditworthiness of the Corporate Defendants in order to procure financing or goods. Plaintiff’s Memo of Law in Opp. at page 9 [ECF Dkt. No. 65]. Plaintiff portrays these unproven and dismissed allegations as facts (e.g., “Defendants have a history of committing fraud ….”) in an attempt to remedy their own pleading deficiencies. But allegations are not facts and, without more, do not justify Plaintiff’s failures to properly plead here. C. Plaintiff’s Breach of Contract Claim is Identical to Its Fraudulent Inducement Claim Plaintiff attempts to use a smoke screen regarding present intent, and suing third-parties, to overshadow the fact that its breach of contract claim is identical to its fraudulent inducement claim and must be dismissed. 6 6 of 13 FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 The entirety of Plaintiff’s argument in this regard is as follows: In the instant action, the fact that was present during the execution of the Agreements, which Defendants misrepresented was Defendants’ financial viability and creditworthiness. The first of the Agreement [sic] was entered into in or around May 2019; however, there is evidence to show that the Corporate Defendants were insolvent since 2018. Thus, when the Corporate Defendants entered into the Agreements, the Individual Defendants had full knowledge of the Corporate Defendants’ inability to pay for the Goods. Plaintiff’s Memo of Law in Opp. at page 12 [ECF Dkt. No. 65]. Both the breach of contract cause of action and the fraudulent inducement causes action are alleged against all Corporate Defendants and Individual Defendants. Despite repeatedly stating throughout its opposition that it cannot specify what representations were made by which specific Corporate Defendants or Individual Defendants which are the basis of its claims, somehow, in support of this argument, Plaintiff now alleges, without providing any detail, that “during the execution of the Agreements, Defendants misrepresented . . . Defendants’ financial viability and creditworthiness.” Id. [ECF Dkt. No. 65]. The only so-called “agreements” Plaintiff can and does point to are the invoices annexed as Exhibit A to the Tretiakov Affidavit, which only name BCNY as a Buyer. [ECF Dkt. No. 56]. Where a fraud claim arises from the same facts as an accompanying contract claim, seeks identical damages and does not allege a breach of any duty collateral to or independent of the parties’ agreements, it is subject to dismissal as redundant of the contract claim. Cronos Group Ltd. v. XComIP, LLC, 156 A.D.3d 54, 62-63, (1st Dep’t 2017); see also Havell Capital Enhanced Mun. Income Fund, L.P. v. Citibank, N.A., 84 A.D.3d 588, 589 (1st Dep’t 2011). Where a fraud claim is supported by allegations that the defendants “misrepresented . . . their intentions with respect to the manner” in which their contractual duties would be performed, it is appropriately dismissed as duplicative of the breach of contract claim because the fraud is premised on the same facts as those that compose the contract claim, the obligations allegedly breached are not collateral 7 7 of 13 FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 to those imposed by the contract, and the damages sought are identical to those recoverable under the contract cause of action. TJ PRP LLC v. Rag & Bone Holdings LLC, 2018 NY Misc. LEXIS 3368, at *8 (Sup. Ct. N.Y. Cty. 2018); see also Cronos Group Ltd., 156 A.D.3d at 62-63 (quoting Financial Structures Ltd. v. UBS AG, 77 A.D.3d 417, 419 (1st Dep’t 2010)). Moreover, “[W]hen a fraud claim would only entitle the plaintiff to the very same damages that are recoverable on its breach of contract claim, the claim should be dismissed as duplicative” MBIA Ins. Corp. v. Credit Suisse Sec. (USA) LLC, 2017 NY Misc. LEXIS 1067, at *52-53 (Sup. Ct. N.Y. Cty. 2017). In this case, the fraudulent inducement claim is solely based on the unsupported allegation that the Corporate Defendants and the Individual Defendants misrepresented their ability to be able perform their contractual duties and the exact same damages are alleged for all causes of action, including the fraudulent inducement and breach of contract claims. Thus, the fraudulent inducement cause of action is duplicative of the breach of contract cause of action and should be dismissed. D. The Amended Complaint Fails to State a Claim for Account Stated Plaintiff’s opposition gives short shrift to its failure to properly allege a cause of action for an account stated. The entirety of Plaintiff’s opposition in this regard is that, based on its own self-serving assessment, there are sufficient allegations to pierce the corporate veil (which there are not) and thus the causes of action for breach of contract, action for payment for goods delivered, and account stated are properly alleged against the Defendants other than BCNY. This argument completely ignores that the Amended Complaint baldly asserts that the Plaintiff “rendered to Defendants, full and true accounts of the indebtedness owing by the Defendants as a result of the Agreements, in an amount as hereinabove set forth which account statements were delivered to and accepted without objection by [all] Defendants.” (Amended 8 8 of 13 FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 Complaint at ¶ 70). As set forth in greater detail in the Motion, however, such allegation lacks credulity and defies logic given that the invoices at issue (see Exhibit A) [ECF Dkt. No. 56] only name BCNY. Because an account stated “assumes the existence of some indebtedness between the parties, or an express agreement to treat the statement as an account stated,” it “cannot be used to create liability where none otherwise exists.” M. Paladino, Inc. v. J. Lucchese & Son Contracting Corp., 247 A.D.2d 515, 516 (2d Dep’t 1998). Given Plaintiff’s own admission that the only transactions at issue were, at best, between it and BCNY, as shown in Exhibit B to the Tretiakov Affidavit, Plaintiff’s cause of action for an account stated must be dismissed as to all defendants other than BCNY. E. The Amended Complaint Fails to State a Claim for Unjust Enrichment Once again, Plaintiff’s opposition glosses over its failure to properly plead in connection with its unjust enrichment cause of action. Instead, Plaintiff attempts to overcome its failure by, somewhat illogically, consolidating its claims for breach of constructive trust, unjust enrichment, conversion, and breach of fiduciary duty, without any explanation. Each cause of action must and should stand on its own. A cause of action for unjust enrichment is not available where, as here, it duplicates, or replaces, a conventional contract claim. Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790 (2012). Unjust enrichment is available only in unusual situations when, though a defendant has not breached a contract, circumstances create an equitable obligation running from the defendant to the plaintiff. Id. Here, the Amended Complaint fails to sufficiently plead a claim for unjust enrichment against the Defendants as it simply restates the breach of contract claim, which, in and of itself, is insufficient to establish such liability against the Defendants. Notably, the Amended 9 9 of 13 FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 Complaint fails to include any allegations that the Defendants were “enriched” or that it would be “against equity and good conscience” to permit the Defendants to retain that which Plaintiff is seeking to recover in its breach of contract claim. Thus, Plaintiff’s unjust enrichment claim should be dismissed as against all Defendants. F. The Amended Complaint Fails to State a Claim for Breach of Fiduciary Duty To recover damages for breach of fiduciary duty, Plaintiff must allege with specificity (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct. Rut v. Young Adult Inst., Inc., 74 A.D.3d 776, 777 (2d Dep’t 2010). For the first time, in Plaintiff’s opposition rather than its Amended Complaint, Plaintiff purports to allege the nature, extent and possible existence of fiduciary relationship. However, Plaintiff does nothing more than allege a conventional business relationship in seeking to manufacture a fiduciary relationship where none exists. Plaintiff also fails to make a showing of special circumstances that could transform the alleged conventional business relationship into a fiduciary one. Instead, Plaintiff relies on Exhibit B to the Tretiakov Affidavit, consisting of an email exchange between Defendant Unger and Plaintiff in an unsuccessful attempt to create a fiduciary relationship. In this email, Mr. Unger responds to Plaintiff’s email inquiry and simply states that, “When the customers reopen and they start accepting goods we should be able to give you a better idea of when payments can start and how much you can expect.” [ECF Dkt. No. 57] It is patently clear that in this email, Mr. Unger made no representations of any kind. Nevertheless, Plaintiff seeks to use this email as evidence that: (1) it delivered the goods in question to all of the Corporate Defendants, rather than just BCNY (the only entity named in the invoices at issue), and (2) BCNY’s customers referenced already made full and final payment for said goods to all 10 10 of 13 FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 of the Corporate Defendants. This is a complete exaggeration and inaccurate reading of Mr. Unger’s email. Plaintiff then seeks to use its incorrect description of Mr. Unger’s email as a basis for transforming the possible future payments by BCNY’s customers to somehow create trust funds and/or to establish a constructive trust. This is absurd and without any factual or legal support. Regardless, the Amended Complaint still fails to properly allege the existence of a constructive trust. Conspicuously absent from the Amended Complaint and Plaintiff’s opposition to the Motion is any allegation of an express or implied promise by the Corporate Defendants or the Individual Defendants, and, most importantly, a transfer made by Plaintiff in reliance on such promise. There is no promise of any kind made by Mr. Unger in Exhibit B and Plaintiff does not make any allegation that it relied on such non-existent promise to transfer anything to the Corporate Defendants or Individual Defendants, other than what may have already been transferred to BCNY. This in and of itself is a sufficient basis to dismiss this cause of action. Nevertheless, Plaintiff attempts to convince this Court that a fiduciary relationship exists in this case by citing to the case of Billings v Shaw, 209 N.Y. 265, 282-283 (1913), for the proposition that directors of corporations act in a fiduciary capacity and as trustees and are strictly accountable to the creditors or stockholders of the corporation for their action. However, even the most cursory reading of the Billings case reveals that it has nothing to do with third- party creditors of a corporation. Billings was an action brought by the receiver of a stone supply company to recover from the defendant directors amounts received by them individually for the ultimate benefit of the stockholders and at the request of other stockholders. The Billings Court explained, and Plaintiff astonishingly disregards here, that: (1) all acts of a director in his own 11 11 of 13 FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 behalf when his personal interest is in conflict with that of the corporation are invalid at the election of the corporation; and (2) the law does not stop to inquire whether the contract or transaction was fair or unfair -- it stops the inquiry when the relation is disclosed, and sets aside the transaction or refuses to enforce it, at the instance of the party whom the fiduciary undertook to represent, without undertaking to deal with the question of abstract justice in the particular case. Clearly, the Billings case does not stand for the overly broad proposition that Plaintiff asserts and there is no basis sufficiently alleged in the Amended Complaint or Plaintiff’s Opposition to establish any fiduciary duty in this case. G. The Amended Complaint Fails to State a Claim for Conversion Plaintiff’s claim for conversion is based solely on its artifice of the existence of trust funds in this matter. For the reasons set forth above and in the Motion, the Amended Complaint fails to establish that any such trust was created or existed as between Plaintiff and any of the Defendants as a matter of law. Instead, Plaintiff has merely alleged, based solely on its incredible and incorrect reading of Exhibit B, that it has a right to payment for goods it allegedly sold to BCNY, which, in and of itself, does not give rise to a claim for conversion against any of the Defendants in this case. See Selinger Enters., Inc. v. Cassuto, 50 A.D.3d 766, 768 (2d Dep’t 2008). As such, Plaintiff’s claim for conversion should be dismissed with prejudice. 12 12 of 13 FILED: NASSAU COUNTY CLERK 04/23/2024 12/20/2023 09:34 07:23 PM AM INDEX NO. 604539/2023 NYSCEF DOC. NO. 96 76 RECEIVED NYSCEF: 04/23/2024 12/20/2023 CONCLUSION For all of the foregoing reasons, Plaintiff respectfully requests that this Court issue an order to granting Defendants’ motion to dismiss the Amended Complaint with prejudice, together with such other and further relief this Court deems just, proper and equitable. Dated: New York, New York December 20, 2023 HALPERIN BATTAGLIA BENZIJA, LLP Counsel to all Defendants By: /s/ Neal W. Cohen Neal W. Cohen, Esq. Scott A. Ziluck, Esq. Matthew T. Murray, Esq. 40 Wall Street, 37th Floor New York, New York 10005 (212)765-9100 ncohen@halperinlaw.net sziluck@halperinlaw.net mmurray@halperinlaw.net Word Count Certification Pursuant to Section 202.8-b of the Uniform Civil Rules for the Supreme Court, the undersigned counsel who has filed the document, relying on the word count of the word-processing system used to prepare the document, certifies that the number of words in the document is 3621 and that the document complies with the word count limit of subsection (a)(i) of said rule. Dated: December 20, 2023 s/Neal W Cohen Neal W. Cohen HALPERIN BATTAGLIA BENZIJA, LLP Counsel to all Defendants 40 Wall Street, 37th Floor New York, New York 10005 (212) 765-9100 ncohen@halperinlaw.net 13 13 of 13