Preview
INDEX NO. 652637/2013
FILED: NEW YORK COUNTY CLERK 04/03/2014
NYSCEF DOC. NO. 162 RECEIVED NYSCEF 04/03/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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BRANDSWAY HOSPITALITY, LLC a/k/a
BRANDSWAY HOSPITALITY, INDIEFORK LLC Index No. 652637/2013
and MATTHEW LEVINE,
Plaintiffs,
-against-
DELSHAH CAPITAL, LLC, DELSHAH MANAGEMENT,
LLC, MICHAEL K. SHAH, VICTOR (Hon. Shlomo S. Hagler)
JUNG, V GLOBAL HOLDINGS INC., 133 ESSEX
RESTAURANT, LLC a/k/a SONS OF ESSEX, BLACK
LABEL RESIDENTIAL LLC, 19 STANTON
RESTAURANT, LLC a/k/a COCKTAIL BODEGA a/k/a
COCKTAIL BODEGA UNDERGROUND, 61 GANS
RESTAURANT LLC, GRIFFON GANSEVOORT
HOLDINGS, LLC, GRIFFON GANSEVOORT
HOLDINGS, LLC, GRIFFON MANAGEMENT, LLC,
GRIFFON 55 GANS LLC, GRIFFON 55 GANS, LLC,
GRIFFON GANS MANAGER, LLC, GRIFFON 19
STANTON LLC, 19 STANTON STREET, LLC, 19
STANTON STREET, LLC, GRIFFON 1356 LLC,
GRIFFON Q, LLC, GRIFFON GANS, LLC, GRIFFON
GANS MANAGER, LLC, GRIFFON HOLDINGS, LLC,
GRIFFON INVESTMENT, LLC, GRIFFON
INVESTMENT GROUP, LLC, GRIFFON
INVESTMENT HOLDINGS, LLC, 1356 RESTAURANT
LLC a/k/a PETALUMA RESTAURANT, 170 MERCER
RESTAURANT LLC, MOON 170 MERCER, INC., 58-60
NINTH REALTY LLC, GANSEVOORT 69 LLC,
DELSHAH GANSEVOORT 69, LLC, 69
GANSEVOORT RESTAURANT, INC., DELSHAH 60
NINTH, LLC, DELSHAH 60 NINTH MANAGER, LLC,
INDIEFORK HOSPITALITY LLC, JAMES CHOUNG,
JCNY, LLC, PAYCHEX, INC., JPMORGAN CHASE &
CO. and JOHN DOE #1 through #10,
Defendants.
JOHN DOE #1 through #10 are fictitious and unknown to
the plaintiffs, the person or parties intended being the
persons or parties, if any, having or claiming an ownership
of the defendant companies or the real property in which they
are situated but whose identity is not yet known.
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PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO
STRIKE PORTIONS OF AMENDED COMPLAINT AND/OR TO COMPEL
FILING OF A SECOND AMENDED COMPLAINT
DANZIG FISHMAN & DECEA
One North Broadway, 12th Floor
White Plains, New York 10601
(914) 285-1400
TABLE OF CONTENTS
Page
Table of Authorities ai)
Preliminary Statement
Statement of Facts
Argument
Legal Standard
Point I
DEFENDANTS’ MOTION TO STRIKE THE AMENDED COMPLAINT
SHOULD BE DENIED BECAUSE THE PLAINTIFFS HAVE
COMPLIED WITH THE REQUIREMENTS OF CPLR §§ 3013 and 3014
Point II 14
DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED
BECAUSE THE AMENDED COMPLAINT IS VOID OF ANY
SCANDALOUS OR PREJUDCIAL MATERIAL AS REQUIRED BY CPLR 3024
Conclusion 15
TABLE OF CONTENTS
Page
Table of Authorities Gi)
Preliminary Statement
Statement of Facts
Argument
Legal Standard
Point I
DEFENDANTS’ MOTION TO STRIKE THE AMENDED COMPLAINT
SHOULD BE DENIED BECAUSE THE PLAINTIFFS HAVE
COMPLIED WITH THE REQUIREMENTS OF CPLR §§ 3013 and 3014
Point II 14
DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED
BECAUSE THE AMENDED COMPLAINT IS VOID OF ANY
SCANDALOUS OR PREJUDCIAL MATERIAL AS REQUIRED BY CPLR 3024
Conclusion 15
TABLE OF AUTHORITIES
CASES Page
Aster v. Arthur Murray, Inc.
220 N.Y.S.2d 34 (Kings Co. Sup. Ct. 1961)...
Bell v. Clarke
45 Misc. 275 (N.Y. Co. Sup. Ct 1904)
Cleminshaw v. Coon
136 A.D. 160 (3d Dep’t 1909) 12
Duross v. Evans II
22 A.D.2d 573 (1* Dep’t 1965)
Foley v. D'Agostino
21 A.D.2d 60, 248 N.Y.S.2d 121 (1964) 7, 8, 13
Guggenheimer v. Ginzburg
43 N.Y.2d 268, 372 N.E.2d 17 (1977) 7,10
J.C. Mfg.. Inc. v. NPI Elec.. Inc.
18 Ad2d 505 (2d Dep’t 1991).
Margos v. Gonzalez
34 Misc.2d 1058 (N.Y. Co. Sup. Ct. 1962) 12
Melito v. Interboro Mut. Indem. Ins. Co.
73 A.D.2d 819 (4" Dep’t 1979)
Merrick v. New York Subways Advertising Co.
14 Misc. 2d 456, 178 N.Y.S.2d 814 (N.Y. Co. Sup. Ct. 1958)
New York City Health & Hosps. Corp. v. St. Barnabas
22A.D.3d 391 (1 Dep’t 2005) 14
Niles v. Yoakum
179 AD. 75 (1* Dep’t 1917)
Rice v. St. Luke’s Roosevelt Hosp. Ctr.
293 A.D.2d 258 (1* Dep’t 2002
ii
Schachter v. Massachusetts Protective Ass’n
30 A.D.2d 540 (2d Dep’t 1968)
Shass v. Abgold Realty Corp.
277 A.D.346 (2d Dep’t 1950).
Shtafman v. I. Rokeach & Sons, Inc.
16 Misc.2d 888 (N.Y. Co. Sup. Ct. 1958)
Soumayah v. Minnelli
41 A.D.3d 390, 392 (1* Dept. 2007)
Ward v. Smallwood
12 A.D.2d 916 (1* Dep’t 1961) 12
Young v. White
158 A.D. 760 (1* Dep’t 1913) 12
STATUTES
CPLR §3211(a)
CPLR §3013 7,9, 10, 11, 12, 13, 14
CPLR §3014 7,9, 10, 11, 12, 13
CPLR §3024 7,9, 10, 11, 12, 13
CPLR 3025(a)
iti
PRELIMINARY STATEMENT
Plaintiffs Brandsway Hospitality, LLC a/k/a Brandsway Hospitality, IndieFORK, LLC
and Matthew Levine (together “Plaintiffs”), submit this memorandum of law in opposition to the
motion of defendants DelShah Capital, LLC, DelShah Management LLC, Michael K. Shah, 133
Essex Restaurant LLC a/k/a Sons of Essex, Black Label Residential LLC, 19 Stanton
Restaurant, LLC a/k/a Cocktail Bodega, 61 Gans Restaurant LLC, Griffon Gansevoort Holdings
LLC, Griffon Gansevoort Holdings LLC, Griffon 55 Gans LLC, Griffon 55 Gans LLC, Griffon
Gans Manager LLC, Griffon 19 Stanton LLC, 19 Stanton Street LLC, 19 Stanton Street LLC,
Griffon 1356 LLC, Griffon Q LLC, Griffon Gans Manager LLC, Griffon Gans Manager LLC,
Griffon Holdings LLC, 1356 Restaurant LLC a/k/a Petaluma Restaurant, 170 Mercer Restaurant
LLC, Moon 170 Mercer, Inc., Delshah Gansevoort 69 LLC, 69 Gansevoort Restaurant, Inc.,
DelShah 60 Ninth LLC, DelShah 60 Ninth Manager LLC and Indie Fork Hospitality LLC
(collectively referred to herein as the “Defendants”) which seeks to strike certain portions of the
amended complaint of Plaintiffs and/or to compel a further amendment thereof (the “Motion”).'
This is the third motion to strike and/or dismiss portions of the complaint made by
Defendants. The Motion is a needless delay tactic. By decision and order dated November 4,
2013 (NYSCEF DOC. NO. 102), this court denied the first motion since defendants failed to
specify in any form what they deemed to be deficient in the original complaint (Plaintiffs had
prior to the briefing of the initial motion requested several times that Defendants provide such
' Although the notice of motion of Defendants dated February 27, 2014 (NYSCEF DOC. NO.
146), requests that portions of the Amended Complaint by stricken and/or that Plaintiffs be
ordered to file a Second Amended Complaint, in its brief, Defendants request that the Amended
Complaint be dismissed. Having failed to move for that relief in its notice of motion, it is
respectfully submitted that this relief is not properly a part of Defendants’ motion and should not
be considered by the court.
specification which they refused to do until it was ordered by the court). Next, defendants made a
second motion correcting their previous defective motion by specifying for the first time those
paragraphs it contended should be corrected. In response to the second more specific motion,
Plaintiffs, in good faith, undertook to amend its complaint and to address, to the extent
appropriate, those allegations which Defendants took issue with. Towards that end, on January
16, 2014 Plaintiffs filed an amended verified complaint (“Amended Complaint”), as of right,
under the Civil Practice Law and Rules Section 3025(a). Irrespective of the significant
modifications made in the Amended Complaint directly based on the objections Defendants
lodged to the original complaint, Defendants now move for exactly the same relief previously
requested.
As will be established below, the legal arguments made by Defendants are contrary to
law and demonstrably false; the Amended Complaint need not be further modified. Indeed, it
bears noting the while Defendants now complain about the numerosity of the paragraphs in the
Amended Complaint, in their prior motions Defendants asked that certain paragraphs be split up
to contain only one allegation; so it appears Defendants’ own request is now problematic to
them.
Conspicuously the twenty-eight Defendants making the present motion are all
represented by the same counsel for the obvious reason that each is related and a creation of
defendant Michael Shah and his co-conspirators (most for no useful business purpose) to
obfuscate his schemes including to defraud the United States Internal Revenue Service, steal
Plaintiffs’ work and otherwise commit the torts outlined in the Amended Complaint which
Defendants now asks be dismissed. Defendants complain about the length and detail of the
Amended Complaint but the fact of the matter is that it merely alleges the facts of their own
conduct. Defendant Shah’s varied defalcation schemes were perpetrated by and through his co-
defendants (Amended Complaint (32-73), via the illegal operations of numerous restaurants
and catering ventures (Amended Complaint 32-73) through which he operated his fraud. The
various conspiracies perpetrated by defendant Shah were voluminous and it is ironic but not
compelling that the primary basis for dismissal is volume; the verified statements contained in
the Amended Complaint are more than adequate to notify under Civil Practice Law and Rules §§
3013, 3014, and 3024.
The principal argument advanced by Defendants in their motion to dismiss is that
Plaintiffs’ Amended Complaint is an “unnecessary prolix, obscure, repetitious and redundant.”
The premise upon which Defendants’ motion is based is wrong and does not support its motion.
The law provides that only those complaints, which contain a mass verbiage of irrelevant or
unnecessary facts, prejudicial trivia and baseless legal conclusions, should be required to be
replead. Significantly, Defendants do not even attempt to argue that the Complaint fails to state
a cause of action upon which relief may be granted because in fact the causes of action are more
than sufficient. Rather, Defendants rely on the length and specificity of the Amended
Complaint, seek to dismiss the Amended Complaint in its entirety and/or to strike certain
paragraphs of the complaint because they contain evidentiary material, and/or contain allegations
which Defendants describe as scandalous and prejudicial. Defendants’ arguments defy logic.
Defendants’ motion should also be denied because Plaintiffs have sufficiently pled causes
of action based on the breach of contract, fraud and other tortuous conduct of Defendants. In
fact, the Amended Complaint establishes that Defendants not only committed tortious acts
against Plaintiffs, which resulted in Plaintiffs suffering grave financial harm, but have also
precluded Plaintiffs from receiving any future financial gains. A careful review of the Amended
Complaint reveals that Plaintiffs pled all necessary factual allegations to give Defendants notice
of the material elements intended to be proved. Moreover, all statements pled are sufficient to
sustain the causes of action stated in the Amended Complaint. The length of the Amended
Complaint is not a basis for its dismissal and in any event establishes and details the series of
occurrences and transactions occurring between 2011 and 2013 that lead to the numerous causes
of action and the filing of this matter. (See Amended Complaint {| 74 - 710). It appears that
Defendants object to the content of the Amended Complaint by virtue of the fact that it details
their wrongdoing but seek to dismiss it under the guise of its length. Defendants should have
thought about their tortious conduct before committing it if they had an aversion to seeing it
detailed in print.
For the reasons established herein and below, the Motion should be denied in all respects.
STATEMENT OF FACTS
The facts to be considered on the motion are set forth in the Amended Complaint which
must be deemed to be true and given all favorable inferences.
Briefly stated, Plaintiff, Brandsway Hospitality, LLC run by Plaintiff Matt Levine
(“Levine”), is a full service food and beverage hospitality and operations firm. Levine is a
proven restaurant operator who entered into a written contract with Defendants, 133 Essex
Restaurant, LLC to run the day to day operations of Sons of Essex. Pursuant to the terms of this
contract, Levine through his corporation Brandsway Hospitality, LLC was to be the managing
partner of Sons of Essex with a 35% ownership interest in the restaurant, which was to vest after
he fulfilled certain performance metrics, in particular after he met Defendants’ revenue goal of
$2,763,490.00 (Amended Complaint §929; 108-109; 112). Levine also marketed, developed and
operated other restaurant ventures with Defendants.
Plaintiffs branded and operated the Sons of Essex receiving a Grade A from the
Department of Health and receiving many accolades. Because of Levine’s reputation, Sons of
Essex booked many publicity and revenue generating events with celebrities garnering a lot of
attention for Sons of Essex. (Amended Complaint {§ 7-8; 108-109; 112-113).
While Levine was building and branding Sons of Essex, Defendants were
misappropriating and commingling funds, were depleting the food, staff and liquor from Sons of
Essex, and committed many other countless tortious acts against Plaintiffs, including forging
Plaintiffs’ signature and using Levine’s social security number to obtain credit cards and
financing without the Plaintiffs’ consent. (Amended Complaint {J 13-18; 111; 164; 258-270;
“Causes of Actions” §§499-710).
Levine fulfilled his performance metrics. Defendants’ financial projections for 2011
were $2,763,490.00. Levine greatly exceeded their goals, bringing in $3,471,873 and was on
pace to generate 3x their own projections. (Amended Complaint {J 29; 108-109; 112; 476-477).
Levine was wrongfully terminated ostensibly because of the failure to achieve certain
performance metrics. However, Defendants are not able to produce any numbers to demonstrate
this purported failure. Levine far surpassed the Defendants’ financial projections and exceeded
their goals, a fact that Defendants pointed out repeatedly in over two years of correspondence.
(Amended Complaint {J 29; 108-109; 395).
Defendants’ commingled funds to finance other projects including restaurants and
catering venues in an effort to divert monies and defraud the United States Internal Revenue
Service and the New York State Department of Taxation and Finance. (Amended Complaint {§
13; 14; 18; 28; 88; 92; 134; 379; 422). Defendants repeatedly used employees of Sons of Essex
to work at the other restaurants and catering venues, for their own personal residences, and to do
their personal tasks. (Amended Complaint {] 17; 23; 95; 203; 212; 277; 287; 315; 339; 340;
358; 369). Profits of Sons of Essex were diverted to make illegal political contributions to the
mayoral candidacy and for the New York City Public Advocate. (Amended Complaint {[f 18).
Additionally taxable profits were regularly being diverted from Sons of Essex to those projects
which were losing money. (Amended Complaint {§{ 17; 23; 379; 386; 446). Defendants went so
far as to purchased liquor illegally in New Jersey to be used for sale at the other restaurants and
catering venues. Liquor was ordered through the Sons of Essex and later transported to the other
restaurants and catering venues. (Amended Complaint §§ 216; 305-306; 313; 318; 319; 369).
Defendants took home liquor for personal use and used business money to pay their own
personal expenses and otherwise commingled the proceeds of the various restaurants and
catering venues. (Amended Complaint {J 13; 17; 23; 93; 95; 169; 203; 212; 277; 287; 315; 339;
340; 358; 369).
After Levine was wrongfully terminated, he was excluded from Sons of Essex and told
he had no ownership interest in Sons of Essex or any of the restaurants and catering venues
Defendants used Plaintiffs outstanding reputation in the restaurant and beverage industry to
achieve financial gain and to the Plaintiffs’ determent. Levine’s termination was not due to his
failure to perform, but was a move to push Plaintiffs out so Defendants could gain complete
control over the restaurants and catering venues that Plaintiffs built. (Amended Complaint {f 2;
24; 28; 226; 234; Section IV “The Wrongful Termination of Brandsway and Levine” {{423-
466).
ARGUMENT
LEGAL STANDARD
On a motion to dismiss, the court’s sole consideration “...is whether the pleading states a
cause of action, and if from its four corners factual allegations are discerned, which taken
together manifest any cause of action cognizable at law a motion for dismissal will fail.”
Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 372 N.E.2d 17 (1977). The present motion is
the reverse of what is usually sought by a CPLR §3211(a) pre-answer motion to dismiss; that is,
such motions generally rely upon the lack of specificity or detail which does not meet the notice
requirements of the law. Here, Defendants argue that the Amended Complaint is too detailed;
this argument is anomalous.
Under the requirements set forth in CPLR §3013, 3014 and 3024 a complaint “(i) shall
contain statements that are sufficiently particular, (ii) shall consist of plain and concise
statements, (iii) shall separately state and number causes of action and indicate the allegations
which relate to each cause of action and give adequate notice of the material elements of each
cause of action, and (iv) shall omit prejudicial and unnecessary allegations.” CPLR §§ 3013,
3014 and 3024. See, also, Foley v. D'Agostino, 21 A.D.2d 60, 64-66, 248 N.Y.S.2d 121 (1964).
The test for whether a complaint is sufficiently particular is whether the pleading gives
notice of the transactions relied on and the material elements of a cause of action. See CPLR §
3013; Duross v. Evans II, 22 A.D.2d 573 (1" Dep’t 1965); and Melito v. Interboro Mut. Indem.
Ins. Co., 73 A.D.2d 819 (4" Dep’t 1979). The requirement that a pleading consist of plain and
concise statements that are separately stated and numbered under CPLR § 3014 was designed to
eliminate loosely drawn verbose and poorly organized pleadings and determine whether or not
the pleading as a whole fails to state a cause of action. Foley v. D'Agostino, supra at 64. The test
for whether a complaint is sufficiently particular is whether the pleading gives notice of the
transactions and to avoid vagueness or ambiguity. Courts will only strike those pleadings which
are “unnecessarily prolix, redundant and repetitious and where, instead of stating plainly and
concisely the material facts, the pleading contains evidentiary matter and is cumbered by a mass
of immaterialities.” Aster v. Arthur Murray, Inc., 220 N.Y.S.2d 34 (Kings Co. Sup. Ct. 1961);
See also, Foley, supra; and Shass v. Abgold Realty Corp., 277 A.D.346 (2d Dep’t 1950).
Finally, only those pleadings which contain unnecessary, irrelevant and prejudicial
material will constitute a violation of CPLR § 3024. Schachter _v. Massachusetts Protective
Ass’n, 30 A.D.2d 540 (2d Dep’t 1968).
The test to be applied...is whether or not the matters pleaded are
too conclusory or of too detailed evidence, is whether or not they
will be relevant at the trial in the resolution of the substantive
issues, and whether or not they be material to move the
court’s...discretion to grant the ordinary and extraordinary relief
requested-all in all, that is, if relevant and material, whether or not
substantive prejudice would be the likely result if the allegations
attached are not stricken
Merrick v. New York Subways Advertising Co., 14 Misc. 2d 456, 178 N.Y.S.2d 814 (N.Y. Co.
Sup. Ct. 1958).
“In reviewing a motion pursuant to CPLR 3024(b) the inquiry is whether the purportedly
scandalous or prejudicial allegations are relevant to a cause of action.” Foley, supra at 64-66 .>
Soumayah v. Minnelli, 41 A.D.3d 390, 392 a Dept. 2007); New York City Health & Hosps.
Corp. v. St. Barnabas, 22A.D.3d 391 (1 Dep’t 2005); Rice v. St. Luke’s Roosevelt Hosp. Ctr.,
293 A.D.2d 258 (1* Dep’t 2002). If the allegations are pertinent to the subject matter of the
litigation, they cannot be scandalous. Niles v. Yoakum, 179 A.D. 75 (1* Dep’t 1917). See also,
Si htafman _v. I. Rokeach & Sons, Inc., 16 Misc.2d 888 (N.Y. Co. Sup. Ct. 1958); and Bell v.
Clarke, 45 Misc. 275 (N.Y. Co. Sup. Ct 1904).
In accordance with the requirements of CPLR § 3013, 3014 and 3024, Plaintiffs have
pled each statement with sufficient particularity, indexing each section of the Amended
Complaint and listing in chronological order the series of occurrences that lead to the causes of
action contained within the Amended Complaint. Moreover, the complaint is void of any
unnecessary, scandalous or prejudicial material and the allegations contained in the pleading are
material to each of the causes of action. Moreover, Defendants have failed to show how they
would be aggrieved by the inclusion of the paragraphs Defendants are seeking to strike. Thus,
there is no basis to dismiss the Amended Complaint. J.C. Mfg.. Inc. v. NPI Elec., Inc., 18 Ad2d
505, 506 (2d Dep’t 1991).
POINT I
DEFENDANTS’ MOTION TO STRIKE THE AMENDED COMPLAINT SHOULD BE
DENIED BECAUSE THE PLAINTIFFS HAVE COMPLIED WITH
THE REQUIREMENTS OF CPLR $ 3013 and 3014
Levine was the unfortunate victim of a scheme designed to build a restaurant empire for
Defendants’ personal gain and to the detriment of Plaintiffs. Defendants benefited from the use
of Plaintiffs’ name and reputation within the restaurant and beverage industry while excluding
him from his portion of the bountiful profits that occurred as a result of his hard work. In order to
avoid having the court muddle their way through a zigzag of allegations, Plaintiffs carefully
drafted and organized each statement or allegation to correspond to each cause of action.
Subsequent to his wrongful termination, Levine discovered how intricate the Defendants’
scheme was. In order to provide notice to the Defendants of the basis for the Amended
Complaint, the Plaintiffs included particularized statements showing how Defendants diverted
the work, good will and assets belonging to Plaintiffs to themselves at the exclusions of
Plaintiffs. Plaintiffs single-handedly built this restaurant empire by branding and operating the
Sons of Essex, Cocktail Bodega, Cocktail Bodega Underground, 61 Gans Restaurant, LLC,
Petaluma and a whole host of restaurant and catering venues. There were numerous Defendants
named in the Amended Complaint because of the multitude of parties that contributed, be it a lot
or a little, in the scheme to defraud Plaintiffs (Amended Complaint § 32-73). Each section of the
Amended Complaint is indexed (Amended Complaint pp i —iii), each statement is separately
numbered and arranged to enable the reader to easily identify the allegations that correspond to
each of the separately numbered causes of action (Amended Complaint {{ 74-710). All
statements contained within the Amended Complaint were used to illustrate with precision each
of Defendants’ actions that led to the filing of the instant matter.
On a motion directed at the pleadings for failure to comply with the requirements of
CPLR §§ 3013, 3014, and 3024, the court must look to whether it states a cause of action and if
from its four comers, factual allegations are discerned which taken together manifest any cause
of action cognizable at law. See, Guggenheimer, supra. Here, Plaintiffs more than adequately
pled each factual allegation to support their causes of action in compliance with the requirements
of CPLR §3014. In particular, Defendants move to strike paragraphs 2-4, 6-14", 16, 17, 21-24,
26-31, 75-77, 80-82, 84-86, 88, 91, 93-107, 111-130, 133, 134, 136-141, 143, 145-148, 150, 154,
155-163, 165-170, 173-180, 182-190, 192-194, 196-200, 202, 203, 205-207, 210-212, 214, 216,
217. 219, 221, 222, 224-227, 229-231, 234, 237, 238, 240, 242, 243, 245-248, 251-253, 255-257,
261-264, 267, 270-272, 274-278, 280, 283-288, 290-292, 295-297, 299, 301-306, 308-338, 339-
? At page 7 of their memorandum of law, Defendants quote to paragraph 7 of the Amended Complaint in support of
their contention and contend that this paragraph was taken verbatim from the original complaint. That statement is
false. In fact, the former paragraph 4 was cut into three paragraphs in the Amended Complaint (4-6). Annexed
hereto as Exhibit A, to the accompany Decea Aff. is a redline comparison showing all of the changes made to the
Amended Complaint.
3 At page 8 of their memorandum of law, Defendants quote to paragraphs 284-285. The allegations contained therein
directly relate to the claims of Levine for wrongful termination and breach of contract. In addition, they relate to the
fraud perpetrated on Levine. Similarly, the paragraphs identified at page 9 relate to the mismanagement and theft of
Defendants.
10
342, 344-347, 349-355, 357-362, 364, 366-372, 375-377, 379, 381, 383, 386, 390, 391, 393, 395-
397, 398, 399, 401-404, 406-415, 418-420, 422, 424, 425, 427, 428, 433-438, 440-443, 445-447,
449-451, 454-457, 459-463, 468-471, 473, 475, 476, 478, 481, 483-489, 491, 494-496, 498, 519-
521, 572, 573, 579, 593, 598, 599, 612, 629, 633, 635. All of these paragraphs contain only one
allegation. The allegations contained within each paragraph correspond to one of the separately
numbered causes of action. Moreover, the information contained within each paragraph is
necessary to make out causes of action cognizable at law.
Although not part of their notice of motion, Defendants also appear to argue, without
merit, that the sheer size of the Amended Complaint in of itself is a basis for dismissal under the
pleading requirements of CPLR § 3013, 3014 and 3024. If it were the intention of the legislature
to have a length requirement, there would be an absolute page limit. Size alone is not sufficient
for dismissal. Plaintiffs are only seeking full and fair compensation for their hard work, loyalty
and dedication to the Sons of Essex and other restaurants and catering venues, which he alone
developed, marketed and promoted. Plaintiffs are the victims and it would be a great injustice to
dismiss the pleading on the basis that it is long-winded. Moreover, Plaintiffs have pled with
sufficient particularity causes of action, which are cognizable at law.
Additionally, Defendants move to strike paragraphs 280, 81, 84,86, 94, 97-99, 100-104,
112, 113, 115, 116, 119, 123, 128-130, 133, 134, 137-140, 145, 147, 153, 155-157, 159, 160,
163, 165, 169, 170, 173-176, 179-183, 186, 190, 192, 193, 197-208, 210, 214, 215, 217, 225,
227, 229, 230, 243, 245, 252, 253, 255, 256, 258, 260-264, 267, 270-272, 274, 278, 284, 285,
291, 292, 294, 295, 297, 302, 304, 311, 313, 315-317, 320-323, 328, 333, 335, 339, 345, 347,
349, 350, 353, 361, 362, 364, 370, 372-375, 377, 391, 396-398, 408, 409, 418-420, 424, 427,
11
428, 434, 435, 437, 440, 441, 447, 448, 451, 453, 454, 462, 488, 496 of the Amended Complaint
without leave to re-plead “as those paragraphs contain evidence and not factual allegations.”
A careful review of the Amended Complaint shows that each of the separately numbered
paragraphs that are referenced above, corresponds to the causes of action and contain all of the
necessary facts to support them. Only those statements which are evidentiary, conclusory,
argumentative or irrelevant are subject to being stricken from the pleading. Ward v. Smallwood,
12 A.D.2d 916 (1% Dep’t 1961). However, the mere fact that an allegation is irrelevant,
conclusory or evidentiary is not sufficient; it must also appear on the face of the pleading that if
it is allowed to remain [in the complaint] will harm the moving party. Margos v. Gonzalez, 34
Misc.2d 1058, 1059 (N.Y. Co. Sup. Ct. 1962). See also, Cleminshaw v. Coon, 136 A.D. 160 (3d
Dep’t 1909); and Young v. White, 158 A.D. 760 (1 Dep’t 1913). Here, Defendants have failed
to prove that the paragraphs that they are asking to be stricken from the pleading are evidentiary,
immaterial or conclusory. Moreover, they have not even attempted to show how they would be
aggrieved by the inclusion of these paragraphs. Id. For the reasons stated herein, the Defendant’s
motion to dismiss the Plaintiff's Amended Complaint in its entirety, or in the alternative strike
the paragraphs referenced above should be denied.
To support this argument that the Amended Complaint should be dismissed purely on the
basis of length, Defendants rely on several cases or rather a “plethora of cases,” that dismissed
complaints for violating the pleading requirements of §§ 3013 and 3014 of the CPLR, which are
“far shorter in length” than the Amended Complaint at issue. One such case is Aetna Cas. & Sur.
Co., v. Merchants Mut. Ins. Co., 84 A.D.2d 736 (1 Dept. 1981), the complaint deemed a novella
by the Court, was dismissed because it contained over eleven pages of evidentiary matters
including quotations from testimony at trial, documents already received in evidence as well as
12
the court’s trial charges. The Court found the complaint to be at odds with the pleading
requirements and therefore dismiss. In the instant Amended Complaint, the Plaintiffs’ have
included all the necessary allegations to plead causes of action which are recognized by law.
There is no information contained within the pleading that is of an “evidentiary nature.”
Defendants also rely on Rapaport v. Diamond Dealers Club, Inc., 95 A.D.2d 743 (1*
Dept. 1983), where the court dismissed the complaint due to the factual allegations continued
therein. The Court found that the allegations were a “confusing succession of discrete facts,
conclusions and comments on hearings and transcripts and other evidentiary matters.” Jd. at 744.
That is not applicable to the instant case. Here, the Amended Complaint is easy to read and
organized in such manner to avoid confusion. Each allegation is sufficiently particular and
corresponds to each of the causes of action. Moreover, as noted above none of the allegations
pled in the Amended Complaint are of an evidentiary nature. The Amended Complaint is crafted
in such a way to put both the Court and the opposing party on notice of the transaction and
occurrences intended to be proved. Defendants also rely on a host of other cases that are either
distinguishable or without authority in this jurisdiction. This court should be guided by the
reasoning of the First Department in Foley v. D’Agostino, 21 A.D.2d 60 (1* Dept. 1964), in
considering whether to grant a motion to dismiss, the court reasoned that “the burden is expressly
placed upon one who attacks a pleading for deficiencies in its allegations to show that he is
prejudiced.” Id. at 65. Further, the Court noted that they would invariably disregard pleading
irregularities where the parties have been put on notice as to the transactions or occurrences
sought to be litigated or as to the nature and elements of the alleged causes of action.” Id. at 66.
After considering whether the complaint complied with the pleading requirements of CPLR §§
3013, 3014 and 3024, the court denied the motion to dismiss stating that at least the first two
13
causes when viewed with reason and liberality were sufficiently particular as to the facts and
details to state a cause of action. Similarly, the statements contained in the Amended Complaint
were drafted with sufficient particularity to give defendants notice of the Plaintiffs’ claims and of
the elements of Plaintiffs’ causes of action. Id. at 68. It is clear that the Amended Complaint
comports not only to requirements as set forth in CPLR §§ 3013, 3014, and 3024, it also falls in
line with the determinations made by the Courts in this jurisdiction. Therefore, Defendants’
argument that the Amended Complaint fails to comply is over-reaching and simply unavailing.
POINT II
DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED BECAUSE
THE AMENDED COMPLAINT IS VOID OF ANY SCANDALOUS OR PREJUDCIAL
MATERIAL AS REQUIRED BY CPLR 3024
“A motion to strike scandalous or prejudicial material from a pleading...will be denied if
the allegations are relevant to a cause of action.” New York City Health & Hosps. Corp. v. St.
Barnabas, 22 A.D.3d 391 (1 Dep’t 2005). Although Plaintiffs have pled all of the necessary
factual allegations to give Defendants notice of the material elements intended to be proved,
Defendants claim that Plaintiffs have inserted scandalous and/or prejudicial information
unnecessarily and as a “gratuitous attack.”
Specifically, Defendants seek to strike paragraphs 11-18, 31, 88, 114, 120, 126, 134, 138,
152, 155, 157, 158, 178, 179, 180, 212, 226, 314-325, 328, 330, 331-335, 342, 349, 350, 352,
353, 354, 359, 360, 361, 362, 369 (w/footnote), 378, 379, 403, 422, 443, 462 of the Amended
Complaint. This time, Defendants claim these paragraphs contain prejudicial material that do not
relate to any causes of action. In particular, Defendants seek to strike those paragraphs, which
they say attack Shah’s and Jung’s character and past wrongdoings. On the contrary, the disputed
paragraphs are relevant to establish causes of action for fraud, conversion, wrongful termination,
14
breach of fiduciary duty, unjust enrichment, negligence and breach of duty of good faith and fair
dealing as alleged in the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth,
thirteenth, fifteenth, and seventeenth causes of action. Because the paragraphs Defendants seek
to dismiss are relevant to the above-referenced causes of action, Defendants’ motion must be
denied.
CONCLUSION
For all the reasons set forth herein and the Amended Complaint, this court should in all
respects deny Defendants’ motion.
Dated: White Plains, New York
April 3, 2014
Respectfully submitted,
DANZIG FISHMAN & DECEA
By: /s/ Thomas B. Decea
THOMAS B. DECEA
A Member of the Firm
Attorneys for Plaintiffs
One North Broadway, 12" Floor
White Plains, New York 10601
(914) 285-1400
15
Preview
INDEX NO. 652637/2013 FILED: NEW YORK COUNTY CLERK 04/03/2014 NYSCEF DOC. NO. 162 RECEIVED NYSCEF 04/03/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK eee een een ene nnn nen enema en nnnnmnn nnn nnnenenene. BRANDSWAY HOSPITALITY, LLC a/k/a BRANDSWAY HOSPITALITY, INDIEFORK LLC Index No. 652637/2013 and MATTHEW LEVINE, Plaintiffs, -against- DELSHAH CAPITAL, LLC, DELSHAH MANAGEMENT, LLC, MICHAEL K. SHAH, VICTOR (Hon. Shlomo S. Hagler) JUNG, V GLOBAL HOLDINGS INC., 133 ESSEX RESTAURANT, LLC a/k/a SONS OF ESSEX, BLACK LABEL RESIDENTIAL LLC, 19 STANTON RESTAURANT, LLC a/k/a COCKTAIL BODEGA a/k/a COCKTAIL BODEGA UNDERGROUND, 61 GANS RESTAURANT LLC, GRIFFON GANSEVOORT HOLDINGS, LLC, GRIFFON GANSEVOORT HOLDINGS, LLC, GRIFFON MANAGEMENT, LLC, GRIFFON 55 GANS LLC, GRIFFON 55 GANS, LLC, GRIFFON GANS MANAGER, LLC, GRIFFON 19 STANTON LLC, 19 STANTON STREET, LLC, 19 STANTON STREET, LLC, GRIFFON 1356 LLC, GRIFFON Q, LLC, GRIFFON GANS, LLC, GRIFFON GANS MANAGER, LLC, GRIFFON HOLDINGS, LLC, GRIFFON INVESTMENT, LLC, GRIFFON INVESTMENT GROUP, LLC, GRIFFON INVESTMENT HOLDINGS, LLC, 1356 RESTAURANT LLC a/k/a PETALUMA RESTAURANT, 170 MERCER RESTAURANT LLC, MOON 170 MERCER, INC., 58-60 NINTH REALTY LLC, GANSEVOORT 69 LLC, DELSHAH GANSEVOORT 69, LLC, 69 GANSEVOORT RESTAURANT, INC., DELSHAH 60 NINTH, LLC, DELSHAH 60 NINTH MANAGER, LLC, INDIEFORK HOSPITALITY LLC, JAMES CHOUNG, JCNY, LLC, PAYCHEX, INC., JPMORGAN CHASE & CO. and JOHN DOE #1 through #10, Defendants. JOHN DOE #1 through #10 are fictitious and unknown to the plaintiffs, the person or parties intended being the persons or parties, if any, having or claiming an ownership of the defendant companies or the real property in which they are situated but whose identity is not yet known. mene ne nee ene ee eee ene enn PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO STRIKE PORTIONS OF AMENDED COMPLAINT AND/OR TO COMPEL FILING OF A SECOND AMENDED COMPLAINT DANZIG FISHMAN & DECEA One North Broadway, 12th Floor White Plains, New York 10601 (914) 285-1400 TABLE OF CONTENTS Page Table of Authorities ai) Preliminary Statement Statement of Facts Argument Legal Standard Point I DEFENDANTS’ MOTION TO STRIKE THE AMENDED COMPLAINT SHOULD BE DENIED BECAUSE THE PLAINTIFFS HAVE COMPLIED WITH THE REQUIREMENTS OF CPLR §§ 3013 and 3014 Point II 14 DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED BECAUSE THE AMENDED COMPLAINT IS VOID OF ANY SCANDALOUS OR PREJUDCIAL MATERIAL AS REQUIRED BY CPLR 3024 Conclusion 15 TABLE OF CONTENTS Page Table of Authorities Gi) Preliminary Statement Statement of Facts Argument Legal Standard Point I DEFENDANTS’ MOTION TO STRIKE THE AMENDED COMPLAINT SHOULD BE DENIED BECAUSE THE PLAINTIFFS HAVE COMPLIED WITH THE REQUIREMENTS OF CPLR §§ 3013 and 3014 Point II 14 DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED BECAUSE THE AMENDED COMPLAINT IS VOID OF ANY SCANDALOUS OR PREJUDCIAL MATERIAL AS REQUIRED BY CPLR 3024 Conclusion 15 TABLE OF AUTHORITIES CASES Page Aster v. Arthur Murray, Inc. 220 N.Y.S.2d 34 (Kings Co. Sup. Ct. 1961)... Bell v. Clarke 45 Misc. 275 (N.Y. Co. Sup. Ct 1904) Cleminshaw v. Coon 136 A.D. 160 (3d Dep’t 1909) 12 Duross v. Evans II 22 A.D.2d 573 (1* Dep’t 1965) Foley v. D'Agostino 21 A.D.2d 60, 248 N.Y.S.2d 121 (1964) 7, 8, 13 Guggenheimer v. Ginzburg 43 N.Y.2d 268, 372 N.E.2d 17 (1977) 7,10 J.C. Mfg.. Inc. v. NPI Elec.. Inc. 18 Ad2d 505 (2d Dep’t 1991). Margos v. Gonzalez 34 Misc.2d 1058 (N.Y. Co. Sup. Ct. 1962) 12 Melito v. Interboro Mut. Indem. Ins. Co. 73 A.D.2d 819 (4" Dep’t 1979) Merrick v. New York Subways Advertising Co. 14 Misc. 2d 456, 178 N.Y.S.2d 814 (N.Y. Co. Sup. Ct. 1958) New York City Health & Hosps. Corp. v. St. Barnabas 22A.D.3d 391 (1 Dep’t 2005) 14 Niles v. Yoakum 179 AD. 75 (1* Dep’t 1917) Rice v. St. Luke’s Roosevelt Hosp. Ctr. 293 A.D.2d 258 (1* Dep’t 2002 ii Schachter v. Massachusetts Protective Ass’n 30 A.D.2d 540 (2d Dep’t 1968) Shass v. Abgold Realty Corp. 277 A.D.346 (2d Dep’t 1950). Shtafman v. I. Rokeach & Sons, Inc. 16 Misc.2d 888 (N.Y. Co. Sup. Ct. 1958) Soumayah v. Minnelli 41 A.D.3d 390, 392 (1* Dept. 2007) Ward v. Smallwood 12 A.D.2d 916 (1* Dep’t 1961) 12 Young v. White 158 A.D. 760 (1* Dep’t 1913) 12 STATUTES CPLR §3211(a) CPLR §3013 7,9, 10, 11, 12, 13, 14 CPLR §3014 7,9, 10, 11, 12, 13 CPLR §3024 7,9, 10, 11, 12, 13 CPLR 3025(a) iti PRELIMINARY STATEMENT Plaintiffs Brandsway Hospitality, LLC a/k/a Brandsway Hospitality, IndieFORK, LLC and Matthew Levine (together “Plaintiffs”), submit this memorandum of law in opposition to the motion of defendants DelShah Capital, LLC, DelShah Management LLC, Michael K. Shah, 133 Essex Restaurant LLC a/k/a Sons of Essex, Black Label Residential LLC, 19 Stanton Restaurant, LLC a/k/a Cocktail Bodega, 61 Gans Restaurant LLC, Griffon Gansevoort Holdings LLC, Griffon Gansevoort Holdings LLC, Griffon 55 Gans LLC, Griffon 55 Gans LLC, Griffon Gans Manager LLC, Griffon 19 Stanton LLC, 19 Stanton Street LLC, 19 Stanton Street LLC, Griffon 1356 LLC, Griffon Q LLC, Griffon Gans Manager LLC, Griffon Gans Manager LLC, Griffon Holdings LLC, 1356 Restaurant LLC a/k/a Petaluma Restaurant, 170 Mercer Restaurant LLC, Moon 170 Mercer, Inc., Delshah Gansevoort 69 LLC, 69 Gansevoort Restaurant, Inc., DelShah 60 Ninth LLC, DelShah 60 Ninth Manager LLC and Indie Fork Hospitality LLC (collectively referred to herein as the “Defendants”) which seeks to strike certain portions of the amended complaint of Plaintiffs and/or to compel a further amendment thereof (the “Motion”).' This is the third motion to strike and/or dismiss portions of the complaint made by Defendants. The Motion is a needless delay tactic. By decision and order dated November 4, 2013 (NYSCEF DOC. NO. 102), this court denied the first motion since defendants failed to specify in any form what they deemed to be deficient in the original complaint (Plaintiffs had prior to the briefing of the initial motion requested several times that Defendants provide such ' Although the notice of motion of Defendants dated February 27, 2014 (NYSCEF DOC. NO. 146), requests that portions of the Amended Complaint by stricken and/or that Plaintiffs be ordered to file a Second Amended Complaint, in its brief, Defendants request that the Amended Complaint be dismissed. Having failed to move for that relief in its notice of motion, it is respectfully submitted that this relief is not properly a part of Defendants’ motion and should not be considered by the court. specification which they refused to do until it was ordered by the court). Next, defendants made a second motion correcting their previous defective motion by specifying for the first time those paragraphs it contended should be corrected. In response to the second more specific motion, Plaintiffs, in good faith, undertook to amend its complaint and to address, to the extent appropriate, those allegations which Defendants took issue with. Towards that end, on January 16, 2014 Plaintiffs filed an amended verified complaint (“Amended Complaint”), as of right, under the Civil Practice Law and Rules Section 3025(a). Irrespective of the significant modifications made in the Amended Complaint directly based on the objections Defendants lodged to the original complaint, Defendants now move for exactly the same relief previously requested. As will be established below, the legal arguments made by Defendants are contrary to law and demonstrably false; the Amended Complaint need not be further modified. Indeed, it bears noting the while Defendants now complain about the numerosity of the paragraphs in the Amended Complaint, in their prior motions Defendants asked that certain paragraphs be split up to contain only one allegation; so it appears Defendants’ own request is now problematic to them. Conspicuously the twenty-eight Defendants making the present motion are all represented by the same counsel for the obvious reason that each is related and a creation of defendant Michael Shah and his co-conspirators (most for no useful business purpose) to obfuscate his schemes including to defraud the United States Internal Revenue Service, steal Plaintiffs’ work and otherwise commit the torts outlined in the Amended Complaint which Defendants now asks be dismissed. Defendants complain about the length and detail of the Amended Complaint but the fact of the matter is that it merely alleges the facts of their own conduct. Defendant Shah’s varied defalcation schemes were perpetrated by and through his co- defendants (Amended Complaint (32-73), via the illegal operations of numerous restaurants and catering ventures (Amended Complaint 32-73) through which he operated his fraud. The various conspiracies perpetrated by defendant Shah were voluminous and it is ironic but not compelling that the primary basis for dismissal is volume; the verified statements contained in the Amended Complaint are more than adequate to notify under Civil Practice Law and Rules §§ 3013, 3014, and 3024. The principal argument advanced by Defendants in their motion to dismiss is that Plaintiffs’ Amended Complaint is an “unnecessary prolix, obscure, repetitious and redundant.” The premise upon which Defendants’ motion is based is wrong and does not support its motion. The law provides that only those complaints, which contain a mass verbiage of irrelevant or unnecessary facts, prejudicial trivia and baseless legal conclusions, should be required to be replead. Significantly, Defendants do not even attempt to argue that the Complaint fails to state a cause of action upon which relief may be granted because in fact the causes of action are more than sufficient. Rather, Defendants rely on the length and specificity of the Amended Complaint, seek to dismiss the Amended Complaint in its entirety and/or to strike certain paragraphs of the complaint because they contain evidentiary material, and/or contain allegations which Defendants describe as scandalous and prejudicial. Defendants’ arguments defy logic. Defendants’ motion should also be denied because Plaintiffs have sufficiently pled causes of action based on the breach of contract, fraud and other tortuous conduct of Defendants. In fact, the Amended Complaint establishes that Defendants not only committed tortious acts against Plaintiffs, which resulted in Plaintiffs suffering grave financial harm, but have also precluded Plaintiffs from receiving any future financial gains. A careful review of the Amended Complaint reveals that Plaintiffs pled all necessary factual allegations to give Defendants notice of the material elements intended to be proved. Moreover, all statements pled are sufficient to sustain the causes of action stated in the Amended Complaint. The length of the Amended Complaint is not a basis for its dismissal and in any event establishes and details the series of occurrences and transactions occurring between 2011 and 2013 that lead to the numerous causes of action and the filing of this matter. (See Amended Complaint {| 74 - 710). It appears that Defendants object to the content of the Amended Complaint by virtue of the fact that it details their wrongdoing but seek to dismiss it under the guise of its length. Defendants should have thought about their tortious conduct before committing it if they had an aversion to seeing it detailed in print. For the reasons established herein and below, the Motion should be denied in all respects. STATEMENT OF FACTS The facts to be considered on the motion are set forth in the Amended Complaint which must be deemed to be true and given all favorable inferences. Briefly stated, Plaintiff, Brandsway Hospitality, LLC run by Plaintiff Matt Levine (“Levine”), is a full service food and beverage hospitality and operations firm. Levine is a proven restaurant operator who entered into a written contract with Defendants, 133 Essex Restaurant, LLC to run the day to day operations of Sons of Essex. Pursuant to the terms of this contract, Levine through his corporation Brandsway Hospitality, LLC was to be the managing partner of Sons of Essex with a 35% ownership interest in the restaurant, which was to vest after he fulfilled certain performance metrics, in particular after he met Defendants’ revenue goal of $2,763,490.00 (Amended Complaint §929; 108-109; 112). Levine also marketed, developed and operated other restaurant ventures with Defendants. Plaintiffs branded and operated the Sons of Essex receiving a Grade A from the Department of Health and receiving many accolades. Because of Levine’s reputation, Sons of Essex booked many publicity and revenue generating events with celebrities garnering a lot of attention for Sons of Essex. (Amended Complaint {§ 7-8; 108-109; 112-113). While Levine was building and branding Sons of Essex, Defendants were misappropriating and commingling funds, were depleting the food, staff and liquor from Sons of Essex, and committed many other countless tortious acts against Plaintiffs, including forging Plaintiffs’ signature and using Levine’s social security number to obtain credit cards and financing without the Plaintiffs’ consent. (Amended Complaint {J 13-18; 111; 164; 258-270; “Causes of Actions” §§499-710). Levine fulfilled his performance metrics. Defendants’ financial projections for 2011 were $2,763,490.00. Levine greatly exceeded their goals, bringing in $3,471,873 and was on pace to generate 3x their own projections. (Amended Complaint {J 29; 108-109; 112; 476-477). Levine was wrongfully terminated ostensibly because of the failure to achieve certain performance metrics. However, Defendants are not able to produce any numbers to demonstrate this purported failure. Levine far surpassed the Defendants’ financial projections and exceeded their goals, a fact that Defendants pointed out repeatedly in over two years of correspondence. (Amended Complaint {J 29; 108-109; 395). Defendants’ commingled funds to finance other projects including restaurants and catering venues in an effort to divert monies and defraud the United States Internal Revenue Service and the New York State Department of Taxation and Finance. (Amended Complaint {§ 13; 14; 18; 28; 88; 92; 134; 379; 422). Defendants repeatedly used employees of Sons of Essex to work at the other restaurants and catering venues, for their own personal residences, and to do their personal tasks. (Amended Complaint {] 17; 23; 95; 203; 212; 277; 287; 315; 339; 340; 358; 369). Profits of Sons of Essex were diverted to make illegal political contributions to the mayoral candidacy and for the New York City Public Advocate. (Amended Complaint {[f 18). Additionally taxable profits were regularly being diverted from Sons of Essex to those projects which were losing money. (Amended Complaint {§{ 17; 23; 379; 386; 446). Defendants went so far as to purchased liquor illegally in New Jersey to be used for sale at the other restaurants and catering venues. Liquor was ordered through the Sons of Essex and later transported to the other restaurants and catering venues. (Amended Complaint §§ 216; 305-306; 313; 318; 319; 369). Defendants took home liquor for personal use and used business money to pay their own personal expenses and otherwise commingled the proceeds of the various restaurants and catering venues. (Amended Complaint {J 13; 17; 23; 93; 95; 169; 203; 212; 277; 287; 315; 339; 340; 358; 369). After Levine was wrongfully terminated, he was excluded from Sons of Essex and told he had no ownership interest in Sons of Essex or any of the restaurants and catering venues Defendants used Plaintiffs outstanding reputation in the restaurant and beverage industry to achieve financial gain and to the Plaintiffs’ determent. Levine’s termination was not due to his failure to perform, but was a move to push Plaintiffs out so Defendants could gain complete control over the restaurants and catering venues that Plaintiffs built. (Amended Complaint {f 2; 24; 28; 226; 234; Section IV “The Wrongful Termination of Brandsway and Levine” {{423- 466). ARGUMENT LEGAL STANDARD On a motion to dismiss, the court’s sole consideration “...is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned, which taken together manifest any cause of action cognizable at law a motion for dismissal will fail.” Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 372 N.E.2d 17 (1977). The present motion is the reverse of what is usually sought by a CPLR §3211(a) pre-answer motion to dismiss; that is, such motions generally rely upon the lack of specificity or detail which does not meet the notice requirements of the law. Here, Defendants argue that the Amended Complaint is too detailed; this argument is anomalous. Under the requirements set forth in CPLR §3013, 3014 and 3024 a complaint “(i) shall contain statements that are sufficiently particular, (ii) shall consist of plain and concise statements, (iii) shall separately state and number causes of action and indicate the allegations which relate to each cause of action and give adequate notice of the material elements of each cause of action, and (iv) shall omit prejudicial and unnecessary allegations.” CPLR §§ 3013, 3014 and 3024. See, also, Foley v. D'Agostino, 21 A.D.2d 60, 64-66, 248 N.Y.S.2d 121 (1964). The test for whether a complaint is sufficiently particular is whether the pleading gives notice of the transactions relied on and the material elements of a cause of action. See CPLR § 3013; Duross v. Evans II, 22 A.D.2d 573 (1" Dep’t 1965); and Melito v. Interboro Mut. Indem. Ins. Co., 73 A.D.2d 819 (4" Dep’t 1979). The requirement that a pleading consist of plain and concise statements that are separately stated and numbered under CPLR § 3014 was designed to eliminate loosely drawn verbose and poorly organized pleadings and determine whether or not the pleading as a whole fails to state a cause of action. Foley v. D'Agostino, supra at 64. The test for whether a complaint is sufficiently particular is whether the pleading gives notice of the transactions and to avoid vagueness or ambiguity. Courts will only strike those pleadings which are “unnecessarily prolix, redundant and repetitious and where, instead of stating plainly and concisely the material facts, the pleading contains evidentiary matter and is cumbered by a mass of immaterialities.” Aster v. Arthur Murray, Inc., 220 N.Y.S.2d 34 (Kings Co. Sup. Ct. 1961); See also, Foley, supra; and Shass v. Abgold Realty Corp., 277 A.D.346 (2d Dep’t 1950). Finally, only those pleadings which contain unnecessary, irrelevant and prejudicial material will constitute a violation of CPLR § 3024. Schachter _v. Massachusetts Protective Ass’n, 30 A.D.2d 540 (2d Dep’t 1968). The test to be applied...is whether or not the matters pleaded are too conclusory or of too detailed evidence, is whether or not they will be relevant at the trial in the resolution of the substantive issues, and whether or not they be material to move the court’s...discretion to grant the ordinary and extraordinary relief requested-all in all, that is, if relevant and material, whether or not substantive prejudice would be the likely result if the allegations attached are not stricken Merrick v. New York Subways Advertising Co., 14 Misc. 2d 456, 178 N.Y.S.2d 814 (N.Y. Co. Sup. Ct. 1958). “In reviewing a motion pursuant to CPLR 3024(b) the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action.” Foley, supra at 64-66 .> Soumayah v. Minnelli, 41 A.D.3d 390, 392 a Dept. 2007); New York City Health & Hosps. Corp. v. St. Barnabas, 22A.D.3d 391 (1 Dep’t 2005); Rice v. St. Luke’s Roosevelt Hosp. Ctr., 293 A.D.2d 258 (1* Dep’t 2002). If the allegations are pertinent to the subject matter of the litigation, they cannot be scandalous. Niles v. Yoakum, 179 A.D. 75 (1* Dep’t 1917). See also, Si htafman _v. I. Rokeach & Sons, Inc., 16 Misc.2d 888 (N.Y. Co. Sup. Ct. 1958); and Bell v. Clarke, 45 Misc. 275 (N.Y. Co. Sup. Ct 1904). In accordance with the requirements of CPLR § 3013, 3014 and 3024, Plaintiffs have pled each statement with sufficient particularity, indexing each section of the Amended Complaint and listing in chronological order the series of occurrences that lead to the causes of action contained within the Amended Complaint. Moreover, the complaint is void of any unnecessary, scandalous or prejudicial material and the allegations contained in the pleading are material to each of the causes of action. Moreover, Defendants have failed to show how they would be aggrieved by the inclusion of the paragraphs Defendants are seeking to strike. Thus, there is no basis to dismiss the Amended Complaint. J.C. Mfg.. Inc. v. NPI Elec., Inc., 18 Ad2d 505, 506 (2d Dep’t 1991). POINT I DEFENDANTS’ MOTION TO STRIKE THE AMENDED COMPLAINT SHOULD BE DENIED BECAUSE THE PLAINTIFFS HAVE COMPLIED WITH THE REQUIREMENTS OF CPLR $ 3013 and 3014 Levine was the unfortunate victim of a scheme designed to build a restaurant empire for Defendants’ personal gain and to the detriment of Plaintiffs. Defendants benefited from the use of Plaintiffs’ name and reputation within the restaurant and beverage industry while excluding him from his portion of the bountiful profits that occurred as a result of his hard work. In order to avoid having the court muddle their way through a zigzag of allegations, Plaintiffs carefully drafted and organized each statement or allegation to correspond to each cause of action. Subsequent to his wrongful termination, Levine discovered how intricate the Defendants’ scheme was. In order to provide notice to the Defendants of the basis for the Amended Complaint, the Plaintiffs included particularized statements showing how Defendants diverted the work, good will and assets belonging to Plaintiffs to themselves at the exclusions of Plaintiffs. Plaintiffs single-handedly built this restaurant empire by branding and operating the Sons of Essex, Cocktail Bodega, Cocktail Bodega Underground, 61 Gans Restaurant, LLC, Petaluma and a whole host of restaurant and catering venues. There were numerous Defendants named in the Amended Complaint because of the multitude of parties that contributed, be it a lot or a little, in the scheme to defraud Plaintiffs (Amended Complaint § 32-73). Each section of the Amended Complaint is indexed (Amended Complaint pp i —iii), each statement is separately numbered and arranged to enable the reader to easily identify the allegations that correspond to each of the separately numbered causes of action (Amended Complaint {{ 74-710). All statements contained within the Amended Complaint were used to illustrate with precision each of Defendants’ actions that led to the filing of the instant matter. On a motion directed at the pleadings for failure to comply with the requirements of CPLR §§ 3013, 3014, and 3024, the court must look to whether it states a cause of action and if from its four comers, factual allegations are discerned which taken together manifest any cause of action cognizable at law. See, Guggenheimer, supra. Here, Plaintiffs more than adequately pled each factual allegation to support their causes of action in compliance with the requirements of CPLR §3014. In particular, Defendants move to strike paragraphs 2-4, 6-14", 16, 17, 21-24, 26-31, 75-77, 80-82, 84-86, 88, 91, 93-107, 111-130, 133, 134, 136-141, 143, 145-148, 150, 154, 155-163, 165-170, 173-180, 182-190, 192-194, 196-200, 202, 203, 205-207, 210-212, 214, 216, 217. 219, 221, 222, 224-227, 229-231, 234, 237, 238, 240, 242, 243, 245-248, 251-253, 255-257, 261-264, 267, 270-272, 274-278, 280, 283-288, 290-292, 295-297, 299, 301-306, 308-338, 339- ? At page 7 of their memorandum of law, Defendants quote to paragraph 7 of the Amended Complaint in support of their contention and contend that this paragraph was taken verbatim from the original complaint. That statement is false. In fact, the former paragraph 4 was cut into three paragraphs in the Amended Complaint (4-6). Annexed hereto as Exhibit A, to the accompany Decea Aff. is a redline comparison showing all of the changes made to the Amended Complaint. 3 At page 8 of their memorandum of law, Defendants quote to paragraphs 284-285. The allegations contained therein directly relate to the claims of Levine for wrongful termination and breach of contract. In addition, they relate to the fraud perpetrated on Levine. Similarly, the paragraphs identified at page 9 relate to the mismanagement and theft of Defendants. 10 342, 344-347, 349-355, 357-362, 364, 366-372, 375-377, 379, 381, 383, 386, 390, 391, 393, 395- 397, 398, 399, 401-404, 406-415, 418-420, 422, 424, 425, 427, 428, 433-438, 440-443, 445-447, 449-451, 454-457, 459-463, 468-471, 473, 475, 476, 478, 481, 483-489, 491, 494-496, 498, 519- 521, 572, 573, 579, 593, 598, 599, 612, 629, 633, 635. All of these paragraphs contain only one allegation. The allegations contained within each paragraph correspond to one of the separately numbered causes of action. Moreover, the information contained within each paragraph is necessary to make out causes of action cognizable at law. Although not part of their notice of motion, Defendants also appear to argue, without merit, that the sheer size of the Amended Complaint in of itself is a basis for dismissal under the pleading requirements of CPLR § 3013, 3014 and 3024. If it were the intention of the legislature to have a length requirement, there would be an absolute page limit. Size alone is not sufficient for dismissal. Plaintiffs are only seeking full and fair compensation for their hard work, loyalty and dedication to the Sons of Essex and other restaurants and catering venues, which he alone developed, marketed and promoted. Plaintiffs are the victims and it would be a great injustice to dismiss the pleading on the basis that it is long-winded. Moreover, Plaintiffs have pled with sufficient particularity causes of action, which are cognizable at law. Additionally, Defendants move to strike paragraphs 280, 81, 84,86, 94, 97-99, 100-104, 112, 113, 115, 116, 119, 123, 128-130, 133, 134, 137-140, 145, 147, 153, 155-157, 159, 160, 163, 165, 169, 170, 173-176, 179-183, 186, 190, 192, 193, 197-208, 210, 214, 215, 217, 225, 227, 229, 230, 243, 245, 252, 253, 255, 256, 258, 260-264, 267, 270-272, 274, 278, 284, 285, 291, 292, 294, 295, 297, 302, 304, 311, 313, 315-317, 320-323, 328, 333, 335, 339, 345, 347, 349, 350, 353, 361, 362, 364, 370, 372-375, 377, 391, 396-398, 408, 409, 418-420, 424, 427, 11 428, 434, 435, 437, 440, 441, 447, 448, 451, 453, 454, 462, 488, 496 of the Amended Complaint without leave to re-plead “as those paragraphs contain evidence and not factual allegations.” A careful review of the Amended Complaint shows that each of the separately numbered paragraphs that are referenced above, corresponds to the causes of action and contain all of the necessary facts to support them. Only those statements which are evidentiary, conclusory, argumentative or irrelevant are subject to being stricken from the pleading. Ward v. Smallwood, 12 A.D.2d 916 (1% Dep’t 1961). However, the mere fact that an allegation is irrelevant, conclusory or evidentiary is not sufficient; it must also appear on the face of the pleading that if it is allowed to remain [in the complaint] will harm the moving party. Margos v. Gonzalez, 34 Misc.2d 1058, 1059 (N.Y. Co. Sup. Ct. 1962). See also, Cleminshaw v. Coon, 136 A.D. 160 (3d Dep’t 1909); and Young v. White, 158 A.D. 760 (1 Dep’t 1913). Here, Defendants have failed to prove that the paragraphs that they are asking to be stricken from the pleading are evidentiary, immaterial or conclusory. Moreover, they have not even attempted to show how they would be aggrieved by the inclusion of these paragraphs. Id. For the reasons stated herein, the Defendant’s motion to dismiss the Plaintiff's Amended Complaint in its entirety, or in the alternative strike the paragraphs referenced above should be denied. To support this argument that the Amended Complaint should be dismissed purely on the basis of length, Defendants rely on several cases or rather a “plethora of cases,” that dismissed complaints for violating the pleading requirements of §§ 3013 and 3014 of the CPLR, which are “far shorter in length” than the Amended Complaint at issue. One such case is Aetna Cas. & Sur. Co., v. Merchants Mut. Ins. Co., 84 A.D.2d 736 (1 Dept. 1981), the complaint deemed a novella by the Court, was dismissed because it contained over eleven pages of evidentiary matters including quotations from testimony at trial, documents already received in evidence as well as 12 the court’s trial charges. The Court found the complaint to be at odds with the pleading requirements and therefore dismiss. In the instant Amended Complaint, the Plaintiffs’ have included all the necessary allegations to plead causes of action which are recognized by law. There is no information contained within the pleading that is of an “evidentiary nature.” Defendants also rely on Rapaport v. Diamond Dealers Club, Inc., 95 A.D.2d 743 (1* Dept. 1983), where the court dismissed the complaint due to the factual allegations continued therein. The Court found that the allegations were a “confusing succession of discrete facts, conclusions and comments on hearings and transcripts and other evidentiary matters.” Jd. at 744. That is not applicable to the instant case. Here, the Amended Complaint is easy to read and organized in such manner to avoid confusion. Each allegation is sufficiently particular and corresponds to each of the causes of action. Moreover, as noted above none of the allegations pled in the Amended Complaint are of an evidentiary nature. The Amended Complaint is crafted in such a way to put both the Court and the opposing party on notice of the transaction and occurrences intended to be proved. Defendants also rely on a host of other cases that are either distinguishable or without authority in this jurisdiction. This court should be guided by the reasoning of the First Department in Foley v. D’Agostino, 21 A.D.2d 60 (1* Dept. 1964), in considering whether to grant a motion to dismiss, the court reasoned that “the burden is expressly placed upon one who attacks a pleading for deficiencies in its allegations to show that he is prejudiced.” Id. at 65. Further, the Court noted that they would invariably disregard pleading irregularities where the parties have been put on notice as to the transactions or occurrences sought to be litigated or as to the nature and elements of the alleged causes of action.” Id. at 66. After considering whether the complaint complied with the pleading requirements of CPLR §§ 3013, 3014 and 3024, the court denied the motion to dismiss stating that at least the first two 13 causes when viewed with reason and liberality were sufficiently particular as to the facts and details to state a cause of action. Similarly, the statements contained in the Amended Complaint were drafted with sufficient particularity to give defendants notice of the Plaintiffs’ claims and of the elements of Plaintiffs’ causes of action. Id. at 68. It is clear that the Amended Complaint comports not only to requirements as set forth in CPLR §§ 3013, 3014, and 3024, it also falls in line with the determinations made by the Courts in this jurisdiction. Therefore, Defendants’ argument that the Amended Complaint fails to comply is over-reaching and simply unavailing. POINT II DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED BECAUSE THE AMENDED COMPLAINT IS VOID OF ANY SCANDALOUS OR PREJUDCIAL MATERIAL AS REQUIRED BY CPLR 3024 “A motion to strike scandalous or prejudicial material from a pleading...will be denied if the allegations are relevant to a cause of action.” New York City Health & Hosps. Corp. v. St. Barnabas, 22 A.D.3d 391 (1 Dep’t 2005). Although Plaintiffs have pled all of the necessary factual allegations to give Defendants notice of the material elements intended to be proved, Defendants claim that Plaintiffs have inserted scandalous and/or prejudicial information unnecessarily and as a “gratuitous attack.” Specifically, Defendants seek to strike paragraphs 11-18, 31, 88, 114, 120, 126, 134, 138, 152, 155, 157, 158, 178, 179, 180, 212, 226, 314-325, 328, 330, 331-335, 342, 349, 350, 352, 353, 354, 359, 360, 361, 362, 369 (w/footnote), 378, 379, 403, 422, 443, 462 of the Amended Complaint. This time, Defendants claim these paragraphs contain prejudicial material that do not relate to any causes of action. In particular, Defendants seek to strike those paragraphs, which they say attack Shah’s and Jung’s character and past wrongdoings. On the contrary, the disputed paragraphs are relevant to establish causes of action for fraud, conversion, wrongful termination, 14 breach of fiduciary duty, unjust enrichment, negligence and breach of duty of good faith and fair dealing as alleged in the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, thirteenth, fifteenth, and seventeenth causes of action. Because the paragraphs Defendants seek to dismiss are relevant to the above-referenced causes of action, Defendants’ motion must be denied. CONCLUSION For all the reasons set forth herein and the Amended Complaint, this court should in all respects deny Defendants’ motion. Dated: White Plains, New York April 3, 2014 Respectfully submitted, DANZIG FISHMAN & DECEA By: /s/ Thomas B. Decea THOMAS B. DECEA A Member of the Firm Attorneys for Plaintiffs One North Broadway, 12" Floor White Plains, New York 10601 (914) 285-1400 15