Motion-Secondary: Brandsway Hospitality, Llc A/K/A/ Brandsway Hospitality, Indiefork Llc, Matthew Levine v. Delshah Capital, Llc, Delshah Management, Llc, Michael K. Shah, Victor 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., John Doe #1 Through #10

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                                FILED:         NEW     YORK       COUNTY        CLERK        10/28/2013                                             INDEX    NO.   652637/2013
   NYSCEF     DOC.   NO.   97                                                                                 RECEIVED      NYSCEF:     10/28/2013




                  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,                AFFIRMATION IN
                                                                                                   OPPOSITION TO
                                             -against-                                             MOTION TO DISMISS
                                                                                                   JPMORGAN CHASE CO.
                  DELSHAH CAPITAL, LLC, DELSHAH MANAGEMENT,
                  LLC, MICHAEL K. SHAH, VICTOR
                  JUNG, V GLOBAL HOLDINGS INC., 133 ESSEX
                  RESTAURANT, LLC a/k/a SONS OF ESSEX, BLACK                                       (Hon. Shlomo S. Hagler)
                  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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                           THOMAS B. DECEA, an attorney duly admitted to practice before the courts of the State

                  of New York, affirms the following to be true under the penalties of perjury:

                           1.       I am    a member      of  the  law   firm  of  Danzig     Fishman    &   Decea,    attorneys   for

                  plaintiffs  Brandsway      Hospitality,    LLC,    IndieFORK       LLC    and   Matthew     Levine    (collectively

                  “Plaintiffs”). I make this affirmation opposition to the motion to dismiss of defendant JPMorgan

                  Chase   Bank,   N.A   (“Defendant”) seeking to dismiss the verified            complaint (“Complaint”)        made

                  pursuant to CPLR R. 3024, 3014 and 3013, or in the alternative, compelling Plaintiffs to submit a

                  more definite statement. For the reasons established below and in Plaintiffs’ memorandum of law

                  in opposition to the motion to dismiss of defendants Delshah Capital, LLC et. al. dated and filed

                  September 17, 2013. (ECF Doc. No. 62), Defendant’s motion should in all respects be denied.

                           2.       Defendant     alleges   that the   Complaint     does  not   specifically   provide   Defendant

                  with a “sufficiently clear understanding of the claims alleged against it.” (Coster Aff. in Support,

                  ¶3).  Defendant     further   argues   that  while   Plaintiffs   have   alleged   six  specific   claims   against

                  Defendant,    it is  not  clear  whether   Plaintiffs   seek  relief  against  Defendant     in  any  of  the  other

                  claims because Plaintiffs do not provide a meaningful definition of the term “defendants” as pled

                  in the aiding and abetting causes of action. (Coster Aff. in Support, ¶3).

                           3.       The   claims    that  are  specifically    alleged   against   Defendant     are   properly    and

                  sufficiently pled    in the  Complaint.     In their  fifteenth  cause  of  action,  Plaintiffs  pled  a  claim  for

                  negligence against Defendant. (See Complaint, pp. 222- 230; ¶ 625-678). In their sixteenth cause

                  of  action,  Plaintiffs  pled  a claim   for  unjust  enrichment     against  Defendant.    (See   Complaint,    pp.

                  230-231;    ¶  679-689).     In  their  seventeenth    cause   of  action,  Plaintiffs   pled  a  claim   for  fraud
                  against   Defendant.     (See  Complaint,     p.  231;  ¶  690-694).    In  their  eighteenth    cause   of  action,

                  Plaintiffs pled a claim for commercial bad faith against Defendant. (See Complaint pp. 232-233;

                  ¶  695-708).    In their  nineteenth    cause  of  action,  Plaintiffs   pled  a  claim  for  conversion     against

                  Defendant. (See Complaint p. 233; ¶ 709-715). In their twentieth cause of action, Plaintiffs seek

                  a declaratory judgment against Defendant. (See Complaint p. 234; ¶ 716-725). These claims are

                  clearly  labeled   in  the Complaint     as  well  as  the facts  supporting    these  claims.   (See   Complaint,

                  Chase Bank, ¶ 489-515).

                           4.       In  addition,  in  their fourth   cause  of  action  Plaintiffs  pled  a  claim   for aiding   and

                  abetting   fraud  (See  Complaint     pp.  212-213;    ¶ 546-555);    in their  sixth  cause   of action,  Plaintiff

                  pled a claim for aiding and abetting conversion (See Complaint p. 214; ¶ 562-569); and in their

                  eighth cause of action, Plaintiff pled a claim for aiding and abetting breach of fiduciary duty (See

                  Complaint     pp.  215-216;     ¶ 577-583).     The   aiding   and  abetting    claims   are  alleged   against   all

                  defendants    who   had   actual  or  constructive   knowledge      of, or  provided    substantial   assistance   to

                  advance    the  commission     of, the  frauds,  conversions     and  breach   of  fiduciary duty;    because   it is

                  alleged   that   Defendant     had   actual   or   constructive    knowledge      and/or    provided    substantial

                  assistance   to  the  commission     of  these  frauds,   conversions    and   breach   of  fiduciary   duty,  these

                  claims apply.

                           5.       Defendant complains that it should not be put to the burden of responding to each

                  of  the 22  claims   in  the  Complaint    as  a result  of  Plaintiffs’  purported   failure  to  specify   against

                  which defendants the relief is sought. As noted above, the causes of action against Defendant are

                  clearly marked in the complaint and indicate against which of the defendants the relief is being

                  sought,   as  well  as the  facts  that  support   these  claims.   Moreover,    the  Complaint     is specifically

                  designed with a table of contents for handy reference. The arguments advanced by Defendant are
                  simply    unavailing.    There   is  no   real  basis  for  Defendant’s      motion    other   than  to  delay   the

                  proceedings.

                           6.        For the reasons set forth herein the Defendant’s motion should be denied.

                  Date: White Plains, New York
                          October 28, 2013
                                                                                 /s/ Thomas B. Decea
                                                                                THOMAS B. DECEA