Preview
FILED: NEW YORK COUNTY CLERK 10/08/2014 07:43 PM INDEX NO. 652637/2013
NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 10/08/2014
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 and MATTHEW LEVINE, REPLY AFFIRMATION
Plaintiffs, Index No. 652637/2013
Hon. Shlomo S. Hagler, J.S.C.
-against-
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 STREET LLC, 19 STANTON STREET LLC, 19
STANTON RESTURANT LLC a/k/a COCKTAIL BODEGA
a/k/a COCKTAIL BODEGA UNDERGROUND, 61 GANS
RESTAURANT LLC, GRIFFON GANSEVORT HOLDINGS
LLC, GRIFFON 1356 LLC, 1356 RESTURANT LLC a/k/a
PETALUMA RESTAURANT, 170 MERCER RESTURANT
LLC, MOON 170 MERCER INC., 58-60 NINTH REALTY
LLC, DELSHAH 60 NINTH MANAGER LLC a/k/a POP
BURGER, DELSHAH 60 NINTH MANAGER LLC,
DELSHAH GANSEVOORT 69 LLC, 69 GANSEVOORT
RESTAURANT INC., INDIEFORK HOSPITALITY LLC,
JAMES CHOUNG, JCNY LLC, AND JPMORGAN CHASE &
CO.
Defendants.
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MAX BOOKMAN, an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the truth of the following under the penalties of perjury and
pursuant to CPLR 2106:
1. I am an associate of the firm of Smith Mazure Director Wilkins Young &
Yagerman, P.C., attorney for moving defendant Victor Jung herein and I am fully familiar with
the facts and circumstances surrounding the instant action.
2. I make this affirmation in further support of moving defendant‟s motion to
dismiss plaintiffs‟ Second Amended Complaint in its entirety as against movant, as more
particularly specified in movant‟s Affirmation in Support of the instant application. I
additionally make this application in reply to the “omnibus” memorandum of law submitted by
plaintiffs, ostensibly in opposition to the instant application.
PRELIMINARY STATEMENT
3. This Court must not permit plaintiffs to unceremoniously conflate moving
defendant Victor Jung with the parade of other parties plaintiffs have sued. Adjudication of the
instant Motion to Dismiss requires the Court‟s individual consideration of whether the
allegations made specifically against Mr. Jung state a cause of action. While it is true that other
defendants, represented by other counsel, have also moved to dismiss, the arguments raised by
the undersigned counsel for Mr. Jung in support of his Motion to Dismiss are unique to his
particular circumstances in this action.
4. As this Court recognized on the record when dismissing plaintiffs‟ earlier 175-
page pleading with leave to re-plead in concise form: “You can‟t lump them [the defendants]
together and say that this is the fact. Each one should have an opportunity to be able to form a
response that is adequate, and a defense that they can assert among the – I can‟t even count them
– 30 or so defendants that are listed in the caption.” See Transcript of Proceedings of May 12,
2014, before Hon. Shlomo S. Hagler, at 15:9 – 15:14, annexed hereto as Exhibit A.
5. Plaintiffs‟ “omnibus” Memorandum of Law (ECF Doc. 211), ostensibly in
opposition to moving defendant‟s instant application, almost entirely devotes itself to responding
to the arguments made by the DelShah defendants in support of their Motion to Dismiss those
portions of the Second Amended Complaint (“SAC”) interposed against DelShah. Once again,
Mr. Jung has been “lumped together” by plaintiffs with his co-defendants.
6. Plaintiffs‟ papers essentially waive any opposition to the arguments raised by Mr.
Jung in support of his Motion to Dismiss as they pertain to the unique factual allegations against
him. On the handful of instances where plaintiffs‟ papers do directly respond to Mr. Jung‟s
motion, the response is inapposite. For these reasons, moving defendant‟s instant application
must be granted, and plaintiffs‟ Second Amended Complaint must be dismissed in its entirety as
against Mr. Jung.
REPLY ARGUMENT
I. Plaintiffs have waived any opposition to the defamation
cause of action as against moving defendant
7. Moving defendant sought dismissal of plaintiffs‟ thirteenth cause of action for
defamation. See Aff. in Support at ¶¶ 2, 49. Nowhere in plaintiffs‟ “omnibus” opposition papers
is there any opposition raised, either generally or specifically, to moving defendant‟s application
to dismiss that cause of action.
8. The other causes of action against Mr. Jung name additional co-defendants. For
those causes of actions, plaintiffs have seen fit to “oppose” Mr. Jung‟s motion by mainly
responding to the separate arguments of those co-defendants. The issues with that tactic will be
discussed in greater detail as relevant to those causes of action herein.
9. But the defamation cause of action is unique in that it is pled solely against Mr.
Jung. For that cause of action, plaintiffs‟ opposition papers are entirely silent. See, e.g., MOL in
Opp. at 31-33 (skipping from the twelfth cause of action to the fourteenth cause of action).
10. As plaintiffs have apparently conceded the merit of defendant‟s position on the
defamation cause of action, that claim must quite obviously be dismissed.
11. Even if the Court were to decline to consider plaintiffs‟ failure to raise any
opposition to defendant‟s motion to dismiss the defamation cause of action as a concession of the
merit of that application, there is nevertheless ample reason to grant that portion of the motion.
12. As discussed in defendant‟s moving papers, New York courts have applied CPLR
3016(a) to require that a complaint alleging defamation specifically state, on penalty of
dismissal: “(1) the individuals who made the alleged defamatory statements; (2) the individuals
to whom the alleged defamatory statements were made; (3) the defamatory statements in haec
verba; and (4) the date, time and place of the alleged publication.” Rosenberg v. Home Box
Office, Inc., 2006 NY Slip Op 30358(U) (NY County 2006) aff‟d Rosenberg v. Home Box Off.,
Inc., 33 AD3d 550 (1st Dept. 2006); see also District Council No. 9 v Reich, 2 Misc 3d 271 (NY
County 2003).
13. Thus, in order to bring a cause of action for defamation, a plaintiff must
“particularize the words uttered, as well as . . . the time, manner and persons to whom the
publications were made.” Rosenberg, supra. Failure to articulate these elements, in their
required particularly, mandates the summary dismissal of a defamation claim. Id.
14. Certain statements in the Levine Affidavit arguably add additional particularity
not present in the Second Amended Complaint. See Levine Aff. at ¶¶ 26-29. Specifically,
plaintiffs now allege that (1) “Jung even went as far to tell one of our servers at Sons of Essex,
„let Matt sue, he will win in 5 years” (¶ 26), (2) “Jung even went so far as to tell Sons of Essex
staff of my termination before it was disclosed to me….I received multiple calls and emails from
vendors (such as Mike Stein, VP Southern Wine and Spirits), and even from media outlets,
advising me of such” (¶ 27) (parenthetical in original), and finally (3) “further, Jung advised my
staff that I was bought out of the business for $1.00, which clearly insinuates that I did
something very wrong” (¶ 28).
15. As stated above, plaintiffs never rely on these additional statements in opposition
to moving defendant‟s motion to dismiss the defamation cause of action. Yet even if the Court
were to consider each statement as support for plaintiffs‟ defamation claim, it is evident that
these statements are nevertheless insufficient to meet the required elements of a defamation
cause of action.
II-A. New Claim #1: “Jung even went as far to tell
one of our servers at Sons of Essex, „let Matt sue, he
will win in 5 years‟”
16. As for the claim that “Jung even went as far to tell one of our servers at Sons of
Essex, „let Matt sue, he will win in 5 years,‟” there is no basis to find that such an assertion is
either “false” or “defamatory.” Rosenberg, supra (the first element of defamation is a “false and
defamatory statement of and concerning the plaintiff.”). Instead, it is a mere statement of
opinion.
17. There is a “crucial the distinction between statements of fact and opinions” in that
“generally one cannot be liable simply for expressing an opinion.” Mr. Chow of New York v.
Ste. Jour Azur S.A, 759 F.2d 219 (2d Cir. 1985). Statements are properly characterized as
opinions when they “express a viewpoint and are subjective in nature.” Themed Rests. Inc. v.
Zagat Survey LLC, 4 Misc.3d 974 (NY County 2004).
18. Here, it is patently evident that Mr. Jung‟s alleged assertion, “let Matt sue, he will
win in 5 years” is a “viewpoint” that is “subjective in nature.” Themed Rests., supra. This
assertion can therefore not give rise to a defamation cause of action.
19. Further, the unspecified “one of our servers at Sons of Essex” does not properly
identify the individual to whom the allegedly defamatory statement was made. Again, a
defamation pleading is “insufficient where the claimed defamatory remarks were alleged to have
been made . . . to certain unspecified individuals, at dates, times and places left unspecified.”
District Council No. 9, supra, citing Bell v Alden Owners, 299 AD2d 207 (1st Dept. 2002).
Here, “one of our servers at Sons of Essex” leaves ambiguous all the required elements of
specificity as to “individuals…dates, times and places.” Id.
II-B. New Claim #2: “Jung even went so far as to
tell Sons of Essex staff of my termination before it
was disclosed to me”
20. Next, as to the allegation that “Jung even went so far as to tell Sons of Essex staff
of my termination before itwas disclosed to me,” it is undisputed within the four corners of
plaintiffs‟ pleading that Mr. Levine was indeed terminated. In fact, the second cause of action
against co-defendants is for Wrongful Termination. See SAC at ¶ 71 et seq.
21. It is axiomatic that “truth provides a complete defense to defamation claims.”
Dillon v. City of New York, 261 AD2d 34 (1st Dept. 1999). Here, the subject statement cannot
support a defamation cause of action, because the statement, that Mr. Levine was terminated, is
indisputably true. The fact that Mr. Jung allegedly told Sons of Essex staff of Mr. Levine‟s
termination before it was disclosed to him is irrelevant to the analysis.
22. Additionally, even if the statement was incorrectly characterized as somehow
“false,” the allegations in the pleadings and Levine Affidavit fail to particularize the “dates,
times and places” that the statement was published. District Council No. 9, supra.
23. Further, the alleged defamatory statement is not pled in hac verba. This defect
alone is fatal to plaintiff‟s defamation claim as to that allegation. See, e.g., Murganti v. Weber,
248 A.D.2d 208 (1st Dept. 1998) (“Since the actual defamatory words were never pleaded with
particularity but were only paraphrased in a manner such that the actual words were not evident
from the face of the complaint the long-standing rule is that dismissal is required.”)
II-C. New Claim #3: “Jung advised my staff that I
was bought out of the business for $1.00”
24. Finally, the Levine affidavit alleges that “Jung advised my staff that I was bought
out of the business for $1.00.” Plaintiffs do not even allege that this statement is false. Instead,
Mr. Levine claims that the statement “clearly insinuates that I did something very wrong.” See
Levine Aff. at ¶ 28. Yet insinuation of wrongdoing is not an element of defamation. The
statement must be false, which there is no claim of here. Thus, again, “truth provides a complete
defense.” Dillon, supra.
25. Additionally, the subject statement suffers from the same specificity shortcomings
as the other two statements, in that plaintiffs do not allege the “dates, times and places” that the
statement was published. District Council No. 9, supra.
26. Furthermore, the statement is not pled in hac verba. Murganti, supra. In is
insufficient to merely paraphrase the words complained of. Gill v. Pathmark Stores, 237 AD2d
563 (2d Dept. 1997) (“It is well-settled law that a cause of action sounding in defamation which
fails to comply with the special pleading requirements contained in CPLR 3016 (a) that the
complaint set forth the particular words complained of, mandates dismissal.”). This defect is not
de minimus. To the contrary, “this requirement is strictly enforced and the exact words must be
set forth.” Gardner v. Alexander Rent-A-Car, Inc., 280 NYS2d 595 (1st Dept. 1967) (“Any
qualification in the pleading thereof by use of the words „to the effect,‟ „substantially,‟ or words
of similar import generally renders the complaint defective.”).
27. In conclusion, by submitting an “omnibus” Memorandum of Law that completely
omits any opposition to that branch of the subject Motion to Dismiss seeking dismissal of the
defamation cause of action, which is pled solely as against Mr. Jung, plaintiffs have waived any
such opposition, and thereby concede dismissal of that cause of action. To the extent that the
Court considers the aforementioned new allegations in the Levine affidavit as further evidence of
defamation (although not relied on by plaintiffs as such), those allegations fail to remedy the
defects in the pleadings, for the reasons discussed above. The defamation cause of action must
therefore be dismissed.
II. Plaintiffs’ new submissions do nothing to remedy the
defective fraud cause of action as against moving defendant
28. As defendant brought to the Court‟s attention in his moving papers, there is a fatal
incongruity in plaintiffs‟ allegations of fraud as against Mr. Jung. See Aff. in Supp. at ¶¶ 17-19.
While plaintiffs claim that Mr. Jung misrepresented to Mr. Levine that “Shah and Levine would
be 50/50 partners for all of the Restaurants and Catering Venues,” (SAC at ¶ 87) their attempt at
particularizing that misrepresentation as required by CPLR 3106(b) was to discuss unrelated
allegations that Mr. Jung mismanaged venture funds (SAC at ¶¶ 89 – 100). One has nothing to
do with the other.
29. Apparently, plaintiffs now seek to remedy that incongruity via submission of the
Levine affidavit, which purports to further particularize the alleged misrepresentations by Mr.
Jung. Yet the Levine affidavit is simply more of the same. To wit, plaintiffs double-down on
their claim that the “fact” “misrepresented” to plaintiffs by Mr. Jung was “if Levine performed
certain extra services for them, Shah and Jung would make Levine a 50/50 partner in a new
umbrella entity.” See MOL in Opp. at 3. They again attempt to specify the particulars of that
alleged misrepresentation, as required by CPLR 3106(b), by further elaborating on the already-
familiar laundry list of allegations that amount to a claim that Mr. Jung mismanaged venture
funds.
30. According to plaintiffs, the panoply of venture fund mismanagement allegations
are relevant as evidence that Mr. Jung “had no intention of honoring [his] promise” that Mr.
Levine was to become a 50/50 partner. See MOL in Opp. at 14 (emphasis supplied). Plaintiffs
rely upon the Third Department case Lanzi v. Brooks, 54 AD2d 1057 (3d Dept 1976)
(incorrectly cited by plaintiffs as a substantive Court of Appeals case) to show that they have
satisfied the proposition that “a statement of future intention must allege facts to show that the
defendant, at the time the promissory representation was made, never intended to honor or act on
his statement.”
31. Moving defendant does not dispute the notion that Lanzi articulates an exception
to the general rule that an unfulfilled promise can only sound in breach of contract, not in the tort
of fraud. See generally, Brown v. Lockwood, 78 AD2d 721 (2d Dept. 1980). But it is merely an
exception, not the rule. It is clear that within the four corners of the pleadings and the Levine
affidavit that the general rule, not the exception, must apply in this case.
32. Plaintiffs‟ list of allegations regarding mismanagement of funds cannot, under any
reasonable view, translate into “facts to show that the defendant, at the time the promissory
representation was made, never intended to honor or act on his statement” that Levine was to
become a 50/50 partner. There is simply no connection between the two. As the Appellate
Division observed, “the fact that the expectation did not occur is not sufficient to sustain the
plaintiff's burden of showing that the defendant falsely stated his intentions.” Lanzi, supra.
33. In sum, plaintiffs‟ list of allegations that Mr. Jung mismanaged venture funds is
an inflammatory smokescreen. For plaintiffs to overcome the general rule that a breach of
contract claim may not be disguised as a fraud claim, they must plead facts that would lead to the
inference that Mr. Jung falsely stated his intentions at the time he allegedly stated them. The
claims of mismanagement of venture funds do not meet that burden.
34. Incidentally, Lanzi also notes that a cause of action for fraud may be dismissed
pursuant to CPLR § 3211 when there is no basis for justifiable reliance by the plaintiff. On the
specific facts of Lanzi, the Appellate Division noted that in circumstances where “the plaintiff
knew or should have known that the defendant did not have the ability to make” the subject
promise, and where the “plaintiff should have been aware of the legal limitations on defendant's
authority,” there is no basis for justifiable reliance as a matter of law. See Lanzi, supra.
35. The instant action is no different. There is no reason to believe, within the four
corners of the pleadings and Levine affidavit, that Mr. Jung, perhaps not the other defendants,
but Mr. Jung, had any authority to “make” Mr. Levine a 50/50 partner. According to plaintiff,
Mr. Jung was an officer of DelShah Capital at all relevant times, and nothing more. How Mr.
Jung had any legal authority to fulfill the alleged promise at issue is difficult to conceive of.
Even plaintiffs appear to betray their acceptance of this reality when Mr. Levine writes at the
conclusion of the “fraud” portion of his affidavit that “it is now obvious that … Shah had no
intention of making me a fifty percent partner.” Levine Aff. at ¶ 58 (emphasis supplied).
III. Plaintiffs’ new submissions do nothing to remedy the
defective conversion cause of action as against moving
defendant
36. Plaintiffs‟ conversion cause of action is defective because, inter alia, the only
allegation of conversion pertains to profits of co-defendant Sons of Essex, to wit, not any
property of plaintiffs.
37. Plaintiffs attempt to remedy that obvious defect in their opposition papers by now
claiming that 25% of any profits of Sons of Essex were “rightfully plaintiffs‟.” See MOL in
Opp. at 20. This is nothing but an ineffective post-hoc attempt at rectifying what is clearly an
improper cause of action. Although plaintiffs would have this Court gloss over the distinction
between plaintiff Brandsway and co-defendant Sons of Essex, it is quite evident that the two are
separate entities. The fact that the Management Agreement incorporated into plaintiffs‟ pleading
provides plaintiffs with a 25% equity interest in Sons of Essex does not alter the fact that the
profits of Sons of Essex are not the same as plaintiffs‟ property.
IV. Plaintiffs essentially admit that they seek Declaratory
Judgment on hypothetical liabilities
38. The limits on Declaratory Judgment are clear: “The courts do not make mere
hypothetical adjudications, where there is no presently justiciable controversy before the court,
and where the existence of a 'controversy' is dependent upon the happening of future events.”
Matter of Chantel Nicole R. (Pamela R.), 34 AD3d 99 (1st Dept. 2006).
39. Plaintiffs‟ argument in opposition does not address the points raised by Mr. Jung.
While itis undoubtedly inconvenient for counsel for plaintiffs to respond to four motions to
dismiss at once, that burden does not absolve plaintiffs of their responsibility to oppose each
argument as it pertains to each defendant. Parenthetically, the undersigned would have gladly
extended plaintiffs further time to properly oppose Mr. Jung‟s application, if only plaintiffs had
made such a request.
40. In any event, plaintiffs‟ arguments in opposition to the motion of the DelShah co-
defendants in support of dismissal of the declaratory judgment cause of action as against them is
self-contradictory. Although plaintiffs assure the Court that they are “not seeking” a
“premature” adjudication of hypothetical liabilities, they go on to demand resolution of any
“liabilities that have not yet sprung from the shadows of the Defendants‟ dealings.” See MOL in
Opp. at 29 (emphasis original).
41. Needless to say, “the absurdity of that argument is illustrated by just stating it.”
Webster v. Ryan, 189 Misc.2d 86, (Fam. Ct. 2001).
V. Plaintiffs’ conflating of Mr. Jung with co-defendants is
particularly prejudicial in the Constructive Trust cause of
action
42. In “opposing” moving defendant‟s application to dismiss the constructive trust
cause of action, plaintiffs once again decline to respond to any of Mr. Jung‟s arguments. This
failure is of significant prejudice to Mr. Jung in the constructive trust cause of action, because
unlike the DelShah co-defendants, there is no reason to believe within the pleadings and Levine
affidavit that Mr. Jung maintained a fiduciary relationship with plaintiffs.
43. As the Court is aware, “the elements of a claim for a constructive trust are a
confidential or fiduciary relationship, a promise, a transfer in reliance upon the promise, and
unjust enrichment.” Matter of Gupta, 38 AD3d 445 (1st Dept. 2007) (emphasis supplied).
According to plaintiffs, Mr. Jung is at best an officer of DelShah Capital. He is not a party to the
Management Agreement. He did not enter into any transactions with plaintiffs. Thus, plaintiffs‟
arguments in their opposition papers, devoted to the DelShah co-defendants, have no
applicability to Mr. Jung.
VI. Plaintiffs have waived any opposition to moving
defendant’s arguments in favor of dismissing their cause of
action for a preliminary and permanent injunction
44. Moving defendant raised specific and unique arguments in support of dismissing
plaintiffs‟ cause of action for a preliminary and permanent injunction. Plaintiffs yet again
decline to respond to those arguments. Nor does their response to the separate arguments on this
cause of action raised by co-defendants encompass the arguments raised on behalf of Mr. Jung.
For this reason, moving defendant has no reply argument on this issue, and rests on the
arguments raised in his moving papers.
VII. Housekeeping Matters: (1) The undersigned does not
represent co-defendant V Global Holdings Inc., (2) there is no
cause of action for Aiding and Abetting Conversion pleaded as
against Victor Jung, (3) nor is there a cause of action against
him for Breach of Fiduciary Duty
45. The unwieldy and unmanageable nature of the twenty-eight-party, twenty-two-
count action that plaintiffs have elected to initiate with a fifty-two-page pleading is yet again on
full display in plaintiffs‟ opposition papers. Indeed, plaintiffs‟ papers make three factual
misrepresentations that are an omen of events to come, should the relief requested herein be
denied.
46. First, plaintiffs claim in the Preliminary Statement of their opposition papers that
the instant motion, which plaintiffs dub the “Jung Motion,” is interposed on behalf of defendants
Victor Jung and V Global Holdings Inc. See MOL in Opp. at 1. That is incorrect. As has been
made abundantly clear by every paper the undersigned has submitted in connection with this
action, including the Notice of Motion as to the instant application, the undersigned only
represents defendant Victor Jung. Consequently, the instant application solely pertains to him.
47. Second, counsel for plaintiffs misrepresents to this Court that there is a cause of
action for Breach of Fiduciary Duty as against Mr. Jung, when counsel contends in the Breach of
Fiduciary Duty portion of their opposition papers that “Shah, Jung, and DelShah Entities did not
comply and breached this duty.” MOL in Opp. at 24 (emphasis supplied). There is no cause of
action for Breach of Fiduciary Duty against moving defendant. See SAC at 21 “As And For A
Eighth Cause Of Action For Breach Of Fiduciary Duty against DelShah Capital And Shah.”
48. Third, counsel for plaintiffs misrepresents to this Court that there is a cause of
action for Aiding and Abetting Conversion against Mr. Jung, when counsel contends in Matthew
Levine‟s affidavit that “Defendants Shah, Jung and Choung Aided and Abetted the Conversion.”
See Levine Aff. at ¶ 73-74 (emphasis supplied). Counsel continues, “the conversion…was
accomplished, I believe, with the knowledge of other named defendants all of whom cannot at
this time be identified but certainly Shah and Jung.” Id. at ¶ 74.
49. There is no cause of action for Aiding and Abetting Conversion interposed as
against Mr. Jung. To the contrary, plaintiffs‟ seventh cause of action for Aiding and Abetting
Conversion is only interposed against “the Aiders and Abettors.” See SAC at ¶142. Plaintiffs
define “the Aiders and Abettors” as several other co-defendants not including Mr. Jung:
All of the other named defendants against whom this claim for relief is brought, V
Global, 133 Essex, Black Label , 19 Stanton Street, LLC (NY), 19 Stanton Street,
LLC (DE), 19 Stanton Restaurant LLC a/k/a Cocktail Bodega a/k/a Cocktail
Bodega Underground, 61 Gans Restaurant, LLC, Gansevoort Holdings, Griffon
1356, LLC, Petaluma, 170 Mercer, Moon 170 Mercer, Inc., 58-60 Ninth Realty
LLC, Delshah 60 Ninth LLC a/k/a Pop Burger, DelShah 60 Ninth Manager, LLC,
DelShah Gansevoort 69, LLC, IF Hospitality, JCNY, LLC and Chase Bank
(collectively, the “Aiders and Abettors”) . . .
See SAC at ¶ 118 (parenthetical in original).
50. Plaintiffs should know better. As this Court warned plaintiffs on the record in the
aforementioned appearance dismissing plaintiffs‟ prior pleading with leave to re-plead in concise
form:
I‟ve to tell you that it‟s been rare in my career in the Supreme Court, and even in
Civil Court, to see a complaint that comprises 178 pages, 726 paragraphs. . .
It‟s impossible to form a response to it.
That is confirmed by the language, “aiders and abettors.” It‟s used
interchangeably, this entity versus that entity, so you don‟t know how to form a
response, given the verbosity of this complaint. It is the classic complaint that
must be amended so that the defendants will not be prejudiced and be able to form
an adequate response. . .
I can‟t make everyone an aider and abettor.
See Exhibit A at 13:3 – 15:14 (emphasis supplied).
51. Although the Court has evidently recognized the problem with plaintiffs‟ elastic
use of the term “aiders and abettors” to mean whatever parties the plaintiffs so choose at any
given moment, it appears that the plaintiffs have not learned that lesson. The Court should not
countenance plaintiffs‟ apparent effort, either intentional or as the unintended product of their
unwieldy and unmanageable lawsuit, to shoehorn into opposition papers new causes of action
against Mr. Jung that were not pleaded in the Second Amended Complaint.
CONCLUSION
52. For all the reasons discussed herein and in defendant‟s moving papers, plaintiffs‟
Second Amended Complaint should be dismissed in its entirety as against Mr. Jung.
WHEREFORE, it is respectfully requested that the Court grant the instant motion in its entirety
and grant such other and further relief as to the Court may seem just, proper, and equitable.
Dated: New York, New York
October 8, 2014
MAX BOOKMAN
MCB/mcb
CHU-00665/83
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 and
MATTHEW LEVINE,
INDEX NO. 652637/2013
Plaintiffs,
-against-
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 STREET LLC, 19 STANTON STREET LLC, 19 STANTON
RESTURANT LLC a/k/a COCKTAIL BODEGA a/k/a COCKTAIL BODEGA UNDERGROUND, 61 GANS
RESTAURANT LLC, GRIFFON GANSEVORT HOLDINGS LLC, GRIFFON 1356 LLC, 1356
RESTURANT LLC a/k/a PETALUMA RESTAURANT, 170 MERCER RESTURANT LLC, MOON 170
MERCER INC., 58-60 NINTH REALTY LLC, DELSHAH 60 NINTH MANAGER LLC a/k/a POP
BURGER, DELSHAH 60 NINTH MANAGER LLC, DELSHAH GANSEVOORT 69 LLC, 69
GANSEVOORT RESTAURANT INC., INDIEFORK HOSPITALITY LLC, JAMES CHOUNG, JCNY LLC,
AND JPMORGAN CHASE & CO.
Defendants.
----------------------------------------------------------------------X
REPLY AFFIRMATION
SMITH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, P.C.
Attorneys for Defendant
Victor Jung
111 John Street
New York, NY 10038
(212) 964-7400
CHU-00665
CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.1a
Max C. Bookman hereby certifies that, pursuant to 22 N.Y.C.R.R. §130-1.1a, the foregoing Reply Affirmation is not frivolous nor
frivolously presented.
Dated: New York, New York MAX C. BOOKMAN
October 8, 2014
PLEASE TAKE NOTICE
that the within is a true copy of a entered in the office of the clerk of the within named Court on
.
that a of which the within is a true copy will be presented for settlement to the Hon.
one of the judges of the
within named Court at , on at 9:30 a.m.
MCB/mcb
83
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
BRANDSWAY HOSPITALITY, LLC a/k/a BRANDSWAY
HOSPITALITY, INDIEFORK LLC and MATTHEW AFFIRMATION OF SERVICE
LEVINE,
Index No. 652637/2013
Plaintiffs,
Hon. Shlomo S. Hagler, J.S.C.
-against-
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 STREET LLC, 19 STANTON STREET LLC,
19 STANTON RESTURANT LLC a/k/a COCKTAIL
BODEGA a/k/a COCKTAIL BODEGA UNDERGROUND,
61 GANS RESTAURANT LLC, GRIFFON GANSEVORT
HOLDINGS LLC, GRIFFON 1356 LLC, 1356
RESTURANT LLC a/k/a PETALUMA RESTAURANT, 170
MERCER RESTURANT LLC, MOON 170 MERCER INC.,
58-60 NINTH REALTY LLC, DELSHAH 60 NINTH
MANAGER LLC a/k/a POP BURGER, DELSHAH 60
NINTH MANAGER LLC, DELSHAH GANSEVOORT 69
LLC, 69 GANSEVOORT RESTAURANT INC.,
INDIEFORK HOSPITALITY LLC, JAMES CHOUNG,
JCNY LLC, AND JPMORGAN CHASE & CO.
Defendants.
----------------------------------------------------------------------X
MAX BOOKMAN, an attorney duly admitted to practice law before the Courts of the
State of New York, affirms the truth of the following under the penalties of perjury and pursuant
to CPLR 2106:
1. I am an associate of the firm of Smith Mazure Director Wilkins Young &
Yagerman, P.C., attorney for defendant Victor Jung herein.
2. I am not a party to this action.
3. On October 8, 2014, I served a true copy of the within Reply Affirmation and
supporting documents via the New York State E-Filing System upon all counsel of record
appearing via e-file.
Dated: New York, New York
October 8, 2014
SMITH MAZURE DIRECTOR WILKINS
YOUNG & YAGERMAN, P.C.
MAX BOOKMAN
For the Firm
Attorneys for Defendant
Victor Jung
111 John Street
New York, NY 10038
(212) 964-7400
Our File No. CHU-00665
MCB/mcb
78
Preview
FILED: NEW YORK COUNTY CLERK 10/08/2014 07:43 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 10/08/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X BRANDSWAY HOSPITALITY, LLC a/k/a BRANDSWAY HOSPITALITY, INDIEFORK LLC and MATTHEW LEVINE, REPLY AFFIRMATION Plaintiffs, Index No. 652637/2013 Hon. Shlomo S. Hagler, J.S.C. -against- 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 STREET LLC, 19 STANTON STREET LLC, 19 STANTON RESTURANT LLC a/k/a COCKTAIL BODEGA a/k/a COCKTAIL BODEGA UNDERGROUND, 61 GANS RESTAURANT LLC, GRIFFON GANSEVORT HOLDINGS LLC, GRIFFON 1356 LLC, 1356 RESTURANT LLC a/k/a PETALUMA RESTAURANT, 170 MERCER RESTURANT LLC, MOON 170 MERCER INC., 58-60 NINTH REALTY LLC, DELSHAH 60 NINTH MANAGER LLC a/k/a POP BURGER, DELSHAH 60 NINTH MANAGER LLC, DELSHAH GANSEVOORT 69 LLC, 69 GANSEVOORT RESTAURANT INC., INDIEFORK HOSPITALITY LLC, JAMES CHOUNG, JCNY LLC, AND JPMORGAN CHASE & CO. Defendants. ----------------------------------------------------------------------X MAX BOOKMAN, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following under the penalties of perjury and pursuant to CPLR 2106: 1. I am an associate of the firm of Smith Mazure Director Wilkins Young & Yagerman, P.C., attorney for moving defendant Victor Jung herein and I am fully familiar with the facts and circumstances surrounding the instant action. 2. I make this affirmation in further support of moving defendant‟s motion to dismiss plaintiffs‟ Second Amended Complaint in its entirety as against movant, as more particularly specified in movant‟s Affirmation in Support of the instant application. I additionally make this application in reply to the “omnibus” memorandum of law submitted by plaintiffs, ostensibly in opposition to the instant application. PRELIMINARY STATEMENT 3. This Court must not permit plaintiffs to unceremoniously conflate moving defendant Victor Jung with the parade of other parties plaintiffs have sued. Adjudication of the instant Motion to Dismiss requires the Court‟s individual consideration of whether the allegations made specifically against Mr. Jung state a cause of action. While it is true that other defendants, represented by other counsel, have also moved to dismiss, the arguments raised by the undersigned counsel for Mr. Jung in support of his Motion to Dismiss are unique to his particular circumstances in this action. 4. As this Court recognized on the record when dismissing plaintiffs‟ earlier 175- page pleading with leave to re-plead in concise form: “You can‟t lump them [the defendants] together and say that this is the fact. Each one should have an opportunity to be able to form a response that is adequate, and a defense that they can assert among the – I can‟t even count them – 30 or so defendants that are listed in the caption.” See Transcript of Proceedings of May 12, 2014, before Hon. Shlomo S. Hagler, at 15:9 – 15:14, annexed hereto as Exhibit A. 5. Plaintiffs‟ “omnibus” Memorandum of Law (ECF Doc. 211), ostensibly in opposition to moving defendant‟s instant application, almost entirely devotes itself to responding to the arguments made by the DelShah defendants in support of their Motion to Dismiss those portions of the Second Amended Complaint (“SAC”) interposed against DelShah. Once again, Mr. Jung has been “lumped together” by plaintiffs with his co-defendants. 6. Plaintiffs‟ papers essentially waive any opposition to the arguments raised by Mr. Jung in support of his Motion to Dismiss as they pertain to the unique factual allegations against him. On the handful of instances where plaintiffs‟ papers do directly respond to Mr. Jung‟s motion, the response is inapposite. For these reasons, moving defendant‟s instant application must be granted, and plaintiffs‟ Second Amended Complaint must be dismissed in its entirety as against Mr. Jung. REPLY ARGUMENT I. Plaintiffs have waived any opposition to the defamation cause of action as against moving defendant 7. Moving defendant sought dismissal of plaintiffs‟ thirteenth cause of action for defamation. See Aff. in Support at ¶¶ 2, 49. Nowhere in plaintiffs‟ “omnibus” opposition papers is there any opposition raised, either generally or specifically, to moving defendant‟s application to dismiss that cause of action. 8. The other causes of action against Mr. Jung name additional co-defendants. For those causes of actions, plaintiffs have seen fit to “oppose” Mr. Jung‟s motion by mainly responding to the separate arguments of those co-defendants. The issues with that tactic will be discussed in greater detail as relevant to those causes of action herein. 9. But the defamation cause of action is unique in that it is pled solely against Mr. Jung. For that cause of action, plaintiffs‟ opposition papers are entirely silent. See, e.g., MOL in Opp. at 31-33 (skipping from the twelfth cause of action to the fourteenth cause of action). 10. As plaintiffs have apparently conceded the merit of defendant‟s position on the defamation cause of action, that claim must quite obviously be dismissed. 11. Even if the Court were to decline to consider plaintiffs‟ failure to raise any opposition to defendant‟s motion to dismiss the defamation cause of action as a concession of the merit of that application, there is nevertheless ample reason to grant that portion of the motion. 12. As discussed in defendant‟s moving papers, New York courts have applied CPLR 3016(a) to require that a complaint alleging defamation specifically state, on penalty of dismissal: “(1) the individuals who made the alleged defamatory statements; (2) the individuals to whom the alleged defamatory statements were made; (3) the defamatory statements in haec verba; and (4) the date, time and place of the alleged publication.” Rosenberg v. Home Box Office, Inc., 2006 NY Slip Op 30358(U) (NY County 2006) aff‟d Rosenberg v. Home Box Off., Inc., 33 AD3d 550 (1st Dept. 2006); see also District Council No. 9 v Reich, 2 Misc 3d 271 (NY County 2003). 13. Thus, in order to bring a cause of action for defamation, a plaintiff must “particularize the words uttered, as well as . . . the time, manner and persons to whom the publications were made.” Rosenberg, supra. Failure to articulate these elements, in their required particularly, mandates the summary dismissal of a defamation claim. Id. 14. Certain statements in the Levine Affidavit arguably add additional particularity not present in the Second Amended Complaint. See Levine Aff. at ¶¶ 26-29. Specifically, plaintiffs now allege that (1) “Jung even went as far to tell one of our servers at Sons of Essex, „let Matt sue, he will win in 5 years” (¶ 26), (2) “Jung even went so far as to tell Sons of Essex staff of my termination before it was disclosed to me….I received multiple calls and emails from vendors (such as Mike Stein, VP Southern Wine and Spirits), and even from media outlets, advising me of such” (¶ 27) (parenthetical in original), and finally (3) “further, Jung advised my staff that I was bought out of the business for $1.00, which clearly insinuates that I did something very wrong” (¶ 28). 15. As stated above, plaintiffs never rely on these additional statements in opposition to moving defendant‟s motion to dismiss the defamation cause of action. Yet even if the Court were to consider each statement as support for plaintiffs‟ defamation claim, it is evident that these statements are nevertheless insufficient to meet the required elements of a defamation cause of action. II-A. New Claim #1: “Jung even went as far to tell one of our servers at Sons of Essex, „let Matt sue, he will win in 5 years‟” 16. As for the claim that “Jung even went as far to tell one of our servers at Sons of Essex, „let Matt sue, he will win in 5 years,‟” there is no basis to find that such an assertion is either “false” or “defamatory.” Rosenberg, supra (the first element of defamation is a “false and defamatory statement of and concerning the plaintiff.”). Instead, it is a mere statement of opinion. 17. There is a “crucial the distinction between statements of fact and opinions” in that “generally one cannot be liable simply for expressing an opinion.” Mr. Chow of New York v. Ste. Jour Azur S.A, 759 F.2d 219 (2d Cir. 1985). Statements are properly characterized as opinions when they “express a viewpoint and are subjective in nature.” Themed Rests. Inc. v. Zagat Survey LLC, 4 Misc.3d 974 (NY County 2004). 18. Here, it is patently evident that Mr. Jung‟s alleged assertion, “let Matt sue, he will win in 5 years” is a “viewpoint” that is “subjective in nature.” Themed Rests., supra. This assertion can therefore not give rise to a defamation cause of action. 19. Further, the unspecified “one of our servers at Sons of Essex” does not properly identify the individual to whom the allegedly defamatory statement was made. Again, a defamation pleading is “insufficient where the claimed defamatory remarks were alleged to have been made . . . to certain unspecified individuals, at dates, times and places left unspecified.” District Council No. 9, supra, citing Bell v Alden Owners, 299 AD2d 207 (1st Dept. 2002). Here, “one of our servers at Sons of Essex” leaves ambiguous all the required elements of specificity as to “individuals…dates, times and places.” Id. II-B. New Claim #2: “Jung even went so far as to tell Sons of Essex staff of my termination before it was disclosed to me” 20. Next, as to the allegation that “Jung even went so far as to tell Sons of Essex staff of my termination before itwas disclosed to me,” it is undisputed within the four corners of plaintiffs‟ pleading that Mr. Levine was indeed terminated. In fact, the second cause of action against co-defendants is for Wrongful Termination. See SAC at ¶ 71 et seq. 21. It is axiomatic that “truth provides a complete defense to defamation claims.” Dillon v. City of New York, 261 AD2d 34 (1st Dept. 1999). Here, the subject statement cannot support a defamation cause of action, because the statement, that Mr. Levine was terminated, is indisputably true. The fact that Mr. Jung allegedly told Sons of Essex staff of Mr. Levine‟s termination before it was disclosed to him is irrelevant to the analysis. 22. Additionally, even if the statement was incorrectly characterized as somehow “false,” the allegations in the pleadings and Levine Affidavit fail to particularize the “dates, times and places” that the statement was published. District Council No. 9, supra. 23. Further, the alleged defamatory statement is not pled in hac verba. This defect alone is fatal to plaintiff‟s defamation claim as to that allegation. See, e.g., Murganti v. Weber, 248 A.D.2d 208 (1st Dept. 1998) (“Since the actual defamatory words were never pleaded with particularity but were only paraphrased in a manner such that the actual words were not evident from the face of the complaint the long-standing rule is that dismissal is required.”) II-C. New Claim #3: “Jung advised my staff that I was bought out of the business for $1.00” 24. Finally, the Levine affidavit alleges that “Jung advised my staff that I was bought out of the business for $1.00.” Plaintiffs do not even allege that this statement is false. Instead, Mr. Levine claims that the statement “clearly insinuates that I did something very wrong.” See Levine Aff. at ¶ 28. Yet insinuation of wrongdoing is not an element of defamation. The statement must be false, which there is no claim of here. Thus, again, “truth provides a complete defense.” Dillon, supra. 25. Additionally, the subject statement suffers from the same specificity shortcomings as the other two statements, in that plaintiffs do not allege the “dates, times and places” that the statement was published. District Council No. 9, supra. 26. Furthermore, the statement is not pled in hac verba. Murganti, supra. In is insufficient to merely paraphrase the words complained of. Gill v. Pathmark Stores, 237 AD2d 563 (2d Dept. 1997) (“It is well-settled law that a cause of action sounding in defamation which fails to comply with the special pleading requirements contained in CPLR 3016 (a) that the complaint set forth the particular words complained of, mandates dismissal.”). This defect is not de minimus. To the contrary, “this requirement is strictly enforced and the exact words must be set forth.” Gardner v. Alexander Rent-A-Car, Inc., 280 NYS2d 595 (1st Dept. 1967) (“Any qualification in the pleading thereof by use of the words „to the effect,‟ „substantially,‟ or words of similar import generally renders the complaint defective.”). 27. In conclusion, by submitting an “omnibus” Memorandum of Law that completely omits any opposition to that branch of the subject Motion to Dismiss seeking dismissal of the defamation cause of action, which is pled solely as against Mr. Jung, plaintiffs have waived any such opposition, and thereby concede dismissal of that cause of action. To the extent that the Court considers the aforementioned new allegations in the Levine affidavit as further evidence of defamation (although not relied on by plaintiffs as such), those allegations fail to remedy the defects in the pleadings, for the reasons discussed above. The defamation cause of action must therefore be dismissed. II. Plaintiffs’ new submissions do nothing to remedy the defective fraud cause of action as against moving defendant 28. As defendant brought to the Court‟s attention in his moving papers, there is a fatal incongruity in plaintiffs‟ allegations of fraud as against Mr. Jung. See Aff. in Supp. at ¶¶ 17-19. While plaintiffs claim that Mr. Jung misrepresented to Mr. Levine that “Shah and Levine would be 50/50 partners for all of the Restaurants and Catering Venues,” (SAC at ¶ 87) their attempt at particularizing that misrepresentation as required by CPLR 3106(b) was to discuss unrelated allegations that Mr. Jung mismanaged venture funds (SAC at ¶¶ 89 – 100). One has nothing to do with the other. 29. Apparently, plaintiffs now seek to remedy that incongruity via submission of the Levine affidavit, which purports to further particularize the alleged misrepresentations by Mr. Jung. Yet the Levine affidavit is simply more of the same. To wit, plaintiffs double-down on their claim that the “fact” “misrepresented” to plaintiffs by Mr. Jung was “if Levine performed certain extra services for them, Shah and Jung would make Levine a 50/50 partner in a new umbrella entity.” See MOL in Opp. at 3. They again attempt to specify the particulars of that alleged misrepresentation, as required by CPLR 3106(b), by further elaborating on the already- familiar laundry list of allegations that amount to a claim that Mr. Jung mismanaged venture funds. 30. According to plaintiffs, the panoply of venture fund mismanagement allegations are relevant as evidence that Mr. Jung “had no intention of honoring [his] promise” that Mr. Levine was to become a 50/50 partner. See MOL in Opp. at 14 (emphasis supplied). Plaintiffs rely upon the Third Department case Lanzi v. Brooks, 54 AD2d 1057 (3d Dept 1976) (incorrectly cited by plaintiffs as a substantive Court of Appeals case) to show that they have satisfied the proposition that “a statement of future intention must allege facts to show that the defendant, at the time the promissory representation was made, never intended to honor or act on his statement.” 31. Moving defendant does not dispute the notion that Lanzi articulates an exception to the general rule that an unfulfilled promise can only sound in breach of contract, not in the tort of fraud. See generally, Brown v. Lockwood, 78 AD2d 721 (2d Dept. 1980). But it is merely an exception, not the rule. It is clear that within the four corners of the pleadings and the Levine affidavit that the general rule, not the exception, must apply in this case. 32. Plaintiffs‟ list of allegations regarding mismanagement of funds cannot, under any reasonable view, translate into “facts to show that the defendant, at the time the promissory representation was made, never intended to honor or act on his statement” that Levine was to become a 50/50 partner. There is simply no connection between the two. As the Appellate Division observed, “the fact that the expectation did not occur is not sufficient to sustain the plaintiff's burden of showing that the defendant falsely stated his intentions.” Lanzi, supra. 33. In sum, plaintiffs‟ list of allegations that Mr. Jung mismanaged venture funds is an inflammatory smokescreen. For plaintiffs to overcome the general rule that a breach of contract claim may not be disguised as a fraud claim, they must plead facts that would lead to the inference that Mr. Jung falsely stated his intentions at the time he allegedly stated them. The claims of mismanagement of venture funds do not meet that burden. 34. Incidentally, Lanzi also notes that a cause of action for fraud may be dismissed pursuant to CPLR § 3211 when there is no basis for justifiable reliance by the plaintiff. On the specific facts of Lanzi, the Appellate Division noted that in circumstances where “the plaintiff knew or should have known that the defendant did not have the ability to make” the subject promise, and where the “plaintiff should have been aware of the legal limitations on defendant's authority,” there is no basis for justifiable reliance as a matter of law. See Lanzi, supra. 35. The instant action is no different. There is no reason to believe, within the four corners of the pleadings and Levine affidavit, that Mr. Jung, perhaps not the other defendants, but Mr. Jung, had any authority to “make” Mr. Levine a 50/50 partner. According to plaintiff, Mr. Jung was an officer of DelShah Capital at all relevant times, and nothing more. How Mr. Jung had any legal authority to fulfill the alleged promise at issue is difficult to conceive of. Even plaintiffs appear to betray their acceptance of this reality when Mr. Levine writes at the conclusion of the “fraud” portion of his affidavit that “it is now obvious that … Shah had no intention of making me a fifty percent partner.” Levine Aff. at ¶ 58 (emphasis supplied). III. Plaintiffs’ new submissions do nothing to remedy the defective conversion cause of action as against moving defendant 36. Plaintiffs‟ conversion cause of action is defective because, inter alia, the only allegation of conversion pertains to profits of co-defendant Sons of Essex, to wit, not any property of plaintiffs. 37. Plaintiffs attempt to remedy that obvious defect in their opposition papers by now claiming that 25% of any profits of Sons of Essex were “rightfully plaintiffs‟.” See MOL in Opp. at 20. This is nothing but an ineffective post-hoc attempt at rectifying what is clearly an improper cause of action. Although plaintiffs would have this Court gloss over the distinction between plaintiff Brandsway and co-defendant Sons of Essex, it is quite evident that the two are separate entities. The fact that the Management Agreement incorporated into plaintiffs‟ pleading provides plaintiffs with a 25% equity interest in Sons of Essex does not alter the fact that the profits of Sons of Essex are not the same as plaintiffs‟ property. IV. Plaintiffs essentially admit that they seek Declaratory Judgment on hypothetical liabilities 38. The limits on Declaratory Judgment are clear: “The courts do not make mere hypothetical adjudications, where there is no presently justiciable controversy before the court, and where the existence of a 'controversy' is dependent upon the happening of future events.” Matter of Chantel Nicole R. (Pamela R.), 34 AD3d 99 (1st Dept. 2006). 39. Plaintiffs‟ argument in opposition does not address the points raised by Mr. Jung. While itis undoubtedly inconvenient for counsel for plaintiffs to respond to four motions to dismiss at once, that burden does not absolve plaintiffs of their responsibility to oppose each argument as it pertains to each defendant. Parenthetically, the undersigned would have gladly extended plaintiffs further time to properly oppose Mr. Jung‟s application, if only plaintiffs had made such a request. 40. In any event, plaintiffs‟ arguments in opposition to the motion of the DelShah co- defendants in support of dismissal of the declaratory judgment cause of action as against them is self-contradictory. Although plaintiffs assure the Court that they are “not seeking” a “premature” adjudication of hypothetical liabilities, they go on to demand resolution of any “liabilities that have not yet sprung from the shadows of the Defendants‟ dealings.” See MOL in Opp. at 29 (emphasis original). 41. Needless to say, “the absurdity of that argument is illustrated by just stating it.” Webster v. Ryan, 189 Misc.2d 86, (Fam. Ct. 2001). V. Plaintiffs’ conflating of Mr. Jung with co-defendants is particularly prejudicial in the Constructive Trust cause of action 42. In “opposing” moving defendant‟s application to dismiss the constructive trust cause of action, plaintiffs once again decline to respond to any of Mr. Jung‟s arguments. This failure is of significant prejudice to Mr. Jung in the constructive trust cause of action, because unlike the DelShah co-defendants, there is no reason to believe within the pleadings and Levine affidavit that Mr. Jung maintained a fiduciary relationship with plaintiffs. 43. As the Court is aware, “the elements of a claim for a constructive trust are a confidential or fiduciary relationship, a promise, a transfer in reliance upon the promise, and unjust enrichment.” Matter of Gupta, 38 AD3d 445 (1st Dept. 2007) (emphasis supplied). According to plaintiffs, Mr. Jung is at best an officer of DelShah Capital. He is not a party to the Management Agreement. He did not enter into any transactions with plaintiffs. Thus, plaintiffs‟ arguments in their opposition papers, devoted to the DelShah co-defendants, have no applicability to Mr. Jung. VI. Plaintiffs have waived any opposition to moving defendant’s arguments in favor of dismissing their cause of action for a preliminary and permanent injunction 44. Moving defendant raised specific and unique arguments in support of dismissing plaintiffs‟ cause of action for a preliminary and permanent injunction. Plaintiffs yet again decline to respond to those arguments. Nor does their response to the separate arguments on this cause of action raised by co-defendants encompass the arguments raised on behalf of Mr. Jung. For this reason, moving defendant has no reply argument on this issue, and rests on the arguments raised in his moving papers. VII. Housekeeping Matters: (1) The undersigned does not represent co-defendant V Global Holdings Inc., (2) there is no cause of action for Aiding and Abetting Conversion pleaded as against Victor Jung, (3) nor is there a cause of action against him for Breach of Fiduciary Duty 45. The unwieldy and unmanageable nature of the twenty-eight-party, twenty-two- count action that plaintiffs have elected to initiate with a fifty-two-page pleading is yet again on full display in plaintiffs‟ opposition papers. Indeed, plaintiffs‟ papers make three factual misrepresentations that are an omen of events to come, should the relief requested herein be denied. 46. First, plaintiffs claim in the Preliminary Statement of their opposition papers that the instant motion, which plaintiffs dub the “Jung Motion,” is interposed on behalf of defendants Victor Jung and V Global Holdings Inc. See MOL in Opp. at 1. That is incorrect. As has been made abundantly clear by every paper the undersigned has submitted in connection with this action, including the Notice of Motion as to the instant application, the undersigned only represents defendant Victor Jung. Consequently, the instant application solely pertains to him. 47. Second, counsel for plaintiffs misrepresents to this Court that there is a cause of action for Breach of Fiduciary Duty as against Mr. Jung, when counsel contends in the Breach of Fiduciary Duty portion of their opposition papers that “Shah, Jung, and DelShah Entities did not comply and breached this duty.” MOL in Opp. at 24 (emphasis supplied). There is no cause of action for Breach of Fiduciary Duty against moving defendant. See SAC at 21 “As And For A Eighth Cause Of Action For Breach Of Fiduciary Duty against DelShah Capital And Shah.” 48. Third, counsel for plaintiffs misrepresents to this Court that there is a cause of action for Aiding and Abetting Conversion against Mr. Jung, when counsel contends in Matthew Levine‟s affidavit that “Defendants Shah, Jung and Choung Aided and Abetted the Conversion.” See Levine Aff. at ¶ 73-74 (emphasis supplied). Counsel continues, “the conversion…was accomplished, I believe, with the knowledge of other named defendants all of whom cannot at this time be identified but certainly Shah and Jung.” Id. at ¶ 74. 49. There is no cause of action for Aiding and Abetting Conversion interposed as against Mr. Jung. To the contrary, plaintiffs‟ seventh cause of action for Aiding and Abetting Conversion is only interposed against “the Aiders and Abettors.” See SAC at ¶142. Plaintiffs define “the Aiders and Abettors” as several other co-defendants not including Mr. Jung: All of the other named defendants against whom this claim for relief is brought, V Global, 133 Essex, Black Label , 19 Stanton Street, LLC (NY), 19 Stanton Street, LLC (DE), 19 Stanton Restaurant LLC a/k/a Cocktail Bodega a/k/a Cocktail Bodega Underground, 61 Gans Restaurant, LLC, Gansevoort Holdings, Griffon 1356, LLC, Petaluma, 170 Mercer, Moon 170 Mercer, Inc., 58-60 Ninth Realty LLC, Delshah 60 Ninth LLC a/k/a Pop Burger, DelShah 60 Ninth Manager, LLC, DelShah Gansevoort 69, LLC, IF Hospitality, JCNY, LLC and Chase Bank (collectively, the “Aiders and Abettors”) . . . See SAC at ¶ 118 (parenthetical in original). 50. Plaintiffs should know better. As this Court warned plaintiffs on the record in the aforementioned appearance dismissing plaintiffs‟ prior pleading with leave to re-plead in concise form: I‟ve to tell you that it‟s been rare in my career in the Supreme Court, and even in Civil Court, to see a complaint that comprises 178 pages, 726 paragraphs. . . It‟s impossible to form a response to it. That is confirmed by the language, “aiders and abettors.” It‟s used interchangeably, this entity versus that entity, so you don‟t know how to form a response, given the verbosity of this complaint. It is the classic complaint that must be amended so that the defendants will not be prejudiced and be able to form an adequate response. . . I can‟t make everyone an aider and abettor. See Exhibit A at 13:3 – 15:14 (emphasis supplied). 51. Although the Court has evidently recognized the problem with plaintiffs‟ elastic use of the term “aiders and abettors” to mean whatever parties the plaintiffs so choose at any given moment, it appears that the plaintiffs have not learned that lesson. The Court should not countenance plaintiffs‟ apparent effort, either intentional or as the unintended product of their unwieldy and unmanageable lawsuit, to shoehorn into opposition papers new causes of action against Mr. Jung that were not pleaded in the Second Amended Complaint. CONCLUSION 52. For all the reasons discussed herein and in defendant‟s moving papers, plaintiffs‟ Second Amended Complaint should be dismissed in its entirety as against Mr. Jung. WHEREFORE, it is respectfully requested that the Court grant the instant motion in its entirety and grant such other and further relief as to the Court may seem just, proper, and equitable. Dated: New York, New York October 8, 2014 MAX BOOKMAN MCB/mcb CHU-00665/83 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X BRANDSWAY HOSPITALITY, LLC a/k/a BRANDSWAY HOSPITALITY, INDIEFORK LLC and MATTHEW LEVINE, INDEX NO. 652637/2013 Plaintiffs, -against- 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 STREET LLC, 19 STANTON STREET LLC, 19 STANTON RESTURANT LLC a/k/a COCKTAIL BODEGA a/k/a COCKTAIL BODEGA UNDERGROUND, 61 GANS RESTAURANT LLC, GRIFFON GANSEVORT HOLDINGS LLC, GRIFFON 1356 LLC, 1356 RESTURANT LLC a/k/a PETALUMA RESTAURANT, 170 MERCER RESTURANT LLC, MOON 170 MERCER INC., 58-60 NINTH REALTY LLC, DELSHAH 60 NINTH MANAGER LLC a/k/a POP BURGER, DELSHAH 60 NINTH MANAGER LLC, DELSHAH GANSEVOORT 69 LLC, 69 GANSEVOORT RESTAURANT INC., INDIEFORK HOSPITALITY LLC, JAMES CHOUNG, JCNY LLC, AND JPMORGAN CHASE & CO. Defendants. ----------------------------------------------------------------------X REPLY AFFIRMATION SMITH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, P.C. Attorneys for Defendant Victor Jung 111 John Street New York, NY 10038 (212) 964-7400 CHU-00665 CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.1a Max C. Bookman hereby certifies that, pursuant to 22 N.Y.C.R.R. §130-1.1a, the foregoing Reply Affirmation is not frivolous nor frivolously presented. Dated: New York, New York MAX C. BOOKMAN October 8, 2014 PLEASE TAKE NOTICE that the within is a true copy of a entered in the office of the clerk of the within named Court on . that a of which the within is a true copy will be presented for settlement to the Hon. one of the judges of the within named Court at , on at 9:30 a.m. MCB/mcb 83 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X BRANDSWAY HOSPITALITY, LLC a/k/a BRANDSWAY HOSPITALITY, INDIEFORK LLC and MATTHEW AFFIRMATION OF SERVICE LEVINE, Index No. 652637/2013 Plaintiffs, Hon. Shlomo S. Hagler, J.S.C. -against- 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 STREET LLC, 19 STANTON STREET LLC, 19 STANTON RESTURANT LLC a/k/a COCKTAIL BODEGA a/k/a COCKTAIL BODEGA UNDERGROUND, 61 GANS RESTAURANT LLC, GRIFFON GANSEVORT HOLDINGS LLC, GRIFFON 1356 LLC, 1356 RESTURANT LLC a/k/a PETALUMA RESTAURANT, 170 MERCER RESTURANT LLC, MOON 170 MERCER INC., 58-60 NINTH REALTY LLC, DELSHAH 60 NINTH MANAGER LLC a/k/a POP BURGER, DELSHAH 60 NINTH MANAGER LLC, DELSHAH GANSEVOORT 69 LLC, 69 GANSEVOORT RESTAURANT INC., INDIEFORK HOSPITALITY LLC, JAMES CHOUNG, JCNY LLC, AND JPMORGAN CHASE & CO. Defendants. ----------------------------------------------------------------------X MAX BOOKMAN, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following under the penalties of perjury and pursuant to CPLR 2106: 1. I am an associate of the firm of Smith Mazure Director Wilkins Young & Yagerman, P.C., attorney for defendant Victor Jung herein. 2. I am not a party to this action. 3. On October 8, 2014, I served a true copy of the within Reply Affirmation and supporting documents via the New York State E-Filing System upon all counsel of record appearing via e-file. Dated: New York, New York October 8, 2014 SMITH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, P.C. MAX BOOKMAN For the Firm Attorneys for Defendant Victor Jung 111 John Street New York, NY 10038 (212) 964-7400 Our File No. CHU-00665 MCB/mcb 78