On July 26, 2013 a
Motion-Secondary
was filed
involving a dispute between
Brandsway Hospitality, Llc A K A Brandsway Hospitality,
Indiefork Llc,
Matthew Levine,
and
133 Essex Restaurant, Llc A K A Sons Of Essex,
1356 Restaurant Llc A K A Petaluma Restaurant,
170 Mercer Restaurant Llc,
19 Stanton Restaurant, Llc A K A Cocktail Bodega A K A Cocktail Bodega Underground,
19 Stanton Street, Llc,
58-60 Ninth Realty Llc,
61 Gans Restaurant Llc,
69 Gansevoort Restaurant, Inc.,
Black Label Residential Llc,
Delshah 60 Ninth, Llc,
Delshah 60 Ninth Manager, Llc,
Delshah Capital, Llc,
Delshah Gansevoort 69, Llc,
Delshah Management, Llc,
Gansevoort 69 Llc,
Griffon 1356 Llc,
Griffon 19 Stanton Llc,
Griffon 55 Gans Llc,
Griffon Gansevoort Holdings, Llc,
Griffon Gans, Llc,
Griffon Gans Manager, Llc,
Griffon Holdings, Llc,
Griffon Investment Group, Llc,
Griffon Investment Holdings, Llc,
Griffon Investment, Llc,
Griffon Management, Llc,
Griffon Q, Llc,
Indiefork Hospitality Llc,
James Choung,
Jcny, Llc,
John Doe #1 Through #10,
Jpmorgan Chase & Co.,
Michael K. Shah,
Moon 170 Mercer, Inc.,
Paychex, Inc.,
V Global Holdings Inc.,
Victor Jung,
for Commercial (General)
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 10/09/2014 10:44 PM INDEX NO. 652637/2013
NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/09/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
.................. ......................................................................................... x
BRANDSWAY HOSPITALITY, LLC a/k/a Index No. 652637/2013
BRANDSWAY HOSPITALITY, INDIEFORK
LLC and MATTHEW LEVINE,
Plaintiffs, Reply Affidavit
-against- (Hon. Shlomo S. Hagler)
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, 61 GANS RESTAURANT
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.,
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 interest in any of the
defendant companies or the real property in which
they are situated but whose identity is not known.
State of New York )
)ss:.
County of New York )
James Choung being duly sworn deposes and says as follows:
1. I am one of the individual defendants in this action and I make this affidavit in
support of my motion to dismiss the action on the ground that neither the retention of counsel nor
the commencement of this action was authorized. I am fully familiar with all of the facts and
circumstances of this action.
2. It is undisputed that I am a founding member and manager of the Plaintiff,
Brandsway Hospitality LLC was started as a joint enterprise by between and among myself, Matt
Levine, Jared Cooper and Kelly Brady. The members directed Jared Cooper an attorney to prepare
the Operating Agreement and duly adopted the Operating Agreement to establish the allocation of
membership interests and the internal governance of Brandsway. The allocation of membership
interests was arrived at through negotiation. None of the members was required to make any capital
contribution.
3. Shortly before the adoption of the Operating Agreement Jared Cooper withdrew
from the LLC. Shortly after the adoption of the Operating Agreement Kelly Brady withdrew from
Brandsway management and abandoned her membership interests. Thereafter Matt Levine and I
were the only members and managers of the LLC. After the departure of Cooper and Brady Matt
and I ratified the terms of the Operating Agreement by operating Brandsway jointly as Managers
and allocating membership interests pursuant to the terms of the Operating Agreement.
4. As a member and manager of Brandsway I was never notified of any meeting or
proposed action in lieu of a meeting to authorize the retention of counsel or the commencement of
2
this action. Accordingly I have never authorized the retention of counsel or the commencement of
the lawsuit. Moreover I believe that the expenditure constitutes a waste of the LLC’s assets.
5. Plaintiff in its Memorandum of Law opposes this motion by claiming that the
Operating Agreement is not in effect because it was not signed. Even if there were no Operating
Agreement the management of LLC would be the same. Under the New York Limited Liability
Law in the absence of an Operating Agreement the LLC is managed as set forth in the Articles of
Organization. Annexed hereto as Exhibit R is a copy of the Articles of Organization for Brandsway
filed in the office of the Secretary of State of the State of New York. Notably the Articles of
Organization (Par 5) provide that the LLC is to be managed by the members. Thus with or without
an Operating Agreement Matt Levine needed my consent to the retention of counsel and the
commencement of the action.
6. For all of the foregoing reasons I respectfully request that the motion to dismiss be
granted in all respects with prejudice.
Sworn to before me this
$ oay of October 2014
BONNI C. LIPPMAN
NOTARY PUBLIC-STATE OF NEW YORK
No. 01LI6202911
Q ualified inNew York County
Commission Expires March 30, 2017
3
EXHIBIT A
iioio70odV£3
ARTICLES OF ORGANIZATION
OF
BRANDSWAY HOSPITALITY, LLC
Under Section 203 of the Limited Liability Company Law
FIRST: The name of the limited liability company is
BRANDSWAY HOSPITALITY, LLC
SECOND: The county within this state in which the office of the
limited liability company is to be located is New York .
THIRD: The secretary of state is designated as agent of the
limited liability company upon whom process against it may be
served. The post office address within or without this state to
which the secretary of state shall mail a copy of any process
against the limited liability company served upon him or her
is Corporation Service Company, 80 State Street, Albany, New
York 12207.
FOURTH: The name and street address within this state of the
registered agent of the limited liability company upon whom and
at which process against the limited liability company can be
served is Corporation Service Company, 80 State Street, Albany,
New York 12207.
FIFTH: The limited liability company is to be managed by
(check appropriate box):
XX 1 or more members
______ 1 or more managers
Joanne A. Burkhartt. Organizer
(name and capacity of signer)
110107000452
CTv
O
••
o
iu
>
o
ac
«CC
ff 0107000
r- ARTICLES OF ORGANIZATION
i
LlJ %
''V-' OF
BRANDSWAY HOSPITALITY, LLC
Under Section 203 of the Limited Liability Company Law
Filer:
Mr. Matthew Levine STATE OF NEW YORK 'i
584
Suite
Broadway
1107 DEPARTMENT OF STATE i
New York, NY 10012 fJLfD JAN 07 2011
Cust Ref# 635961JBA foK —r— J
CSC-45 nr. ^
DRAWDOWN
Preview
FILED: NEW YORK COUNTY CLERK 10/09/2014 10:44 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/09/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK .................. ......................................................................................... x BRANDSWAY HOSPITALITY, LLC a/k/a Index No. 652637/2013 BRANDSWAY HOSPITALITY, INDIEFORK LLC and MATTHEW LEVINE, Plaintiffs, Reply Affidavit -against- (Hon. Shlomo S. Hagler) 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, 61 GANS RESTAURANT 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., 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 interest in any of the defendant companies or the real property in which they are situated but whose identity is not known. State of New York ) )ss:. County of New York ) James Choung being duly sworn deposes and says as follows: 1. I am one of the individual defendants in this action and I make this affidavit in support of my motion to dismiss the action on the ground that neither the retention of counsel nor the commencement of this action was authorized. I am fully familiar with all of the facts and circumstances of this action. 2. It is undisputed that I am a founding member and manager of the Plaintiff, Brandsway Hospitality LLC was started as a joint enterprise by between and among myself, Matt Levine, Jared Cooper and Kelly Brady. The members directed Jared Cooper an attorney to prepare the Operating Agreement and duly adopted the Operating Agreement to establish the allocation of membership interests and the internal governance of Brandsway. The allocation of membership interests was arrived at through negotiation. None of the members was required to make any capital contribution. 3. Shortly before the adoption of the Operating Agreement Jared Cooper withdrew from the LLC. Shortly after the adoption of the Operating Agreement Kelly Brady withdrew from Brandsway management and abandoned her membership interests. Thereafter Matt Levine and I were the only members and managers of the LLC. After the departure of Cooper and Brady Matt and I ratified the terms of the Operating Agreement by operating Brandsway jointly as Managers and allocating membership interests pursuant to the terms of the Operating Agreement. 4. As a member and manager of Brandsway I was never notified of any meeting or proposed action in lieu of a meeting to authorize the retention of counsel or the commencement of 2 this action. Accordingly I have never authorized the retention of counsel or the commencement of the lawsuit. Moreover I believe that the expenditure constitutes a waste of the LLC’s assets. 5. Plaintiff in its Memorandum of Law opposes this motion by claiming that the Operating Agreement is not in effect because it was not signed. Even if there were no Operating Agreement the management of LLC would be the same. Under the New York Limited Liability Law in the absence of an Operating Agreement the LLC is managed as set forth in the Articles of Organization. Annexed hereto as Exhibit R is a copy of the Articles of Organization for Brandsway filed in the office of the Secretary of State of the State of New York. Notably the Articles of Organization (Par 5) provide that the LLC is to be managed by the members. Thus with or without an Operating Agreement Matt Levine needed my consent to the retention of counsel and the commencement of the action. 6. For all of the foregoing reasons I respectfully request that the motion to dismiss be granted in all respects with prejudice. Sworn to before me this $ oay of October 2014 BONNI C. LIPPMAN NOTARY PUBLIC-STATE OF NEW YORK No. 01LI6202911 Q ualified inNew York County Commission Expires March 30, 2017 3 EXHIBIT A iioio70odV£3 ARTICLES OF ORGANIZATION OF BRANDSWAY HOSPITALITY, LLC Under Section 203 of the Limited Liability Company Law FIRST: The name of the limited liability company is BRANDSWAY HOSPITALITY, LLC SECOND: The county within this state in which the office of the limited liability company is to be located is New York . THIRD: The secretary of state is designated as agent of the limited liability company upon whom process against it may be served. The post office address within or without this state to which the secretary of state shall mail a copy of any process against the limited liability company served upon him or her is Corporation Service Company, 80 State Street, Albany, New York 12207. FOURTH: The name and street address within this state of the registered agent of the limited liability company upon whom and at which process against the limited liability company can be served is Corporation Service Company, 80 State Street, Albany, New York 12207. FIFTH: The limited liability company is to be managed by (check appropriate box): XX 1 or more members ______ 1 or more managers Joanne A. Burkhartt. Organizer (name and capacity of signer) 110107000452 CTv O •• o iu > o ac «CC ff 0107000 r- ARTICLES OF ORGANIZATION i LlJ % ''V-' OF BRANDSWAY HOSPITALITY, LLC Under Section 203 of the Limited Liability Company Law Filer: Mr. Matthew Levine STATE OF NEW YORK 'i 584 Suite Broadway 1107 DEPARTMENT OF STATE i New York, NY 10012 fJLfD JAN 07 2011 Cust Ref# 635961JBA foK —r— J CSC-45 nr. ^ DRAWDOWN