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 07/27/2018 01:43 PM INDEX NO. 652637/2013
NYSCEF DOC. NO. 433 RECEIVED NYSCEF: 07/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------x
BRANDSWAY HOSPITALITY, LLC a/lda
BRANDSWAY HOSPITALITY,
and MATTHEW LEVINE '
Index No. 652637/2013
Plaintiffs,
-against-
DELSHAH CAPITAL LLC, MICHAEL K. SHAH,
and VICTOR JUNG,
Defendants.
--------------------------------------------------------------x
PLAINTIFFS'
MEMORANDUM OF LAW IN SUPPORT
OF MOTION FOR PARTIAL SUMMARY JUDGMENT
FISHMAN DECEA & FELDMAN
84 Business Park Drive, Suite 200
Armonk, New York 10504
(914) 285-1400
Attorneys for Plaintiffs
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Prelimina Statement
On March 9, 2011, plaintiff Brandsway Hospitality, LLC ("Brandsway") and defendant
("Defendant"
Delshah Capital, LLC or "Delshah") entered into a contract dated March 9, 2011
"Contract"
(the ). The term of the Contract was perpetuity and, in essence, required Brandsway to
manage and operate a new restaurant known as Sons of Essex Restaurant ("SOE").
("Shah"
The Contract provided that Delshah and its principal, defendant Michael Shah ),
could terminate the Contract for cause if Brandsway (i) failed to meet certain stated performance
"Metrics"
metrics (the ), or (ii) was involved in theft, fraud or dishonesty. In the event of a
termination for cause, Delshah may purchase Brandsway s interest in SOE for $1.
Brandsway operated the SOE restaurant for eighteen months and in that time nearly
quadrupled the minimum Metrics required by the Contract. In addition, despite five years of
discovery, defendants have not produced a single document hinting of Plaintiff's involvement in
theft, fraud or dishonesty because there was none.
In fact, during Brandsway's management of SOE flourished and became one of the most
popular restaurants in New York City; its revenues were way beyond what was anticipated to say
nothing of the Metrics which were far exceeded. SOE was branded by Brandsway and was by
any objective standard a massive success.
On or about April, 2013, eighteen months after entering the Contract Brandsway was
terminated, ostensibly for cause, although there was no basis therefore other than Delshah's
desire to shed its continuing obligations to Brandsway under the Contract.
FACTS
The facts relevant to this motion are set forth in the accompanying affirmation of Thomas
("Levine"
B. Decea dated July 27, 2018 and the affidavit of Matthew Levine ) sworn to on the
I
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27th day of July, 2018. Suffice itto say that the evidence procured after more than five years of
discovery in the case make it beyond any doubt that the reason for termination, however
denominated by Delshah, was not and could not have been for cause; accordingly it isliable for
damages under the Contract including attorney's fees as set for therein.
ARGUMENT
POINT I
PARTIAL SUMMARY JUDGMENT AGAINST DELSHAH ON LIABILITY
IS APPROPRIATE SINCE THERE EXISTS NO GENUINE ISSUE OF FACT
Summary judgment is appropriate whenever a review of the entire record demonstrates
fact"
that there is "no genuine issue as to any material and that the movant is entitled to judgment
as a matter of law. CPLR 3212; Andre v. Pomeroy, 35 N.Y.2d 361 (1974); Gibbons v. Hantman,
58 A.D.2d 108 (2d Dep't 1977), aff'd 43 N.Y.2d 1941 (1978). In such circumstances, "summary
judgment is a useful device for unmasking frivolous claims and putting a swift end to meritless
litigation. See Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir. 1972); American Manufacturers
Mutual Insurance Co. v. American -Paramount
Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 278
(2d Cir. 1967), cert denied 404 U.S. 1063, 92 S.Ct. 737, 30 L.Ed 2d 752 (1972) 6 Moore's
Federal Practice 56-15[1.-0](2d ed. 1976). Thus, the mere possibility that a factual dispute may
exist, without more, is not sufficient to overcome a convincing presentation by the moving
party."
Quinn v. Syracuse Model Neighborhood Corp.,. 613 F.2d 438 (2d Cir. 1980).
Despite five years of discovery in this case, while Plaintiff has produced 4,620 pages of
discovery Delshah has produced a mere 452 pages of discovery. While Delshah has deposed
Brandsway's principal for nearly five full days Delshah's counsel has yet to produce itsclient for
a deposition. Where a defendant has been dilatory in seeking or conducting discovery for the
defense, any opposition to the instant motion on the grounds that plaintiff is possessed of
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undisclosed facts essential to defeat the motion is entirely disingenuous. Fine Arts Enterprises,
N.V. v. Levy, 149 A.D.2d 293 (1st Dep't 1990); Rothbort v. S.L.S. Management Corp.,., 185
A.D.2d 806 (2d Dep't 1992). Had the defendants employed diligent, reasonable efforts to gain
knowledge of such facts during discovery proceedings the lack of knowledge claim would have
been avoided. Rothbort,, supra. Instead, by employing stall tactics, the defendants have delayed
these proceedings from inception, by refusing to respond to demand letters, discovery demands
and follow-up letters.
POINT II
DELSHAH HAS VIOLATED THE CLEAR AND UNAMBIGUOUS
TERMS OF THE CONTRACT AND IS LIABLE FOR SAID BREACH
When, as here, the Contract defines the duration of the term (in this case in perpetuity),
provides for termination in very limited circumstances and is subscribed by the party to be
charged, a termination for reasons other than those specified as authorized during it term is
prohibited. General Obligations Law Section 5-701[a][1]. See Rooney v. Tyson, 91 N.Y.2d 685.
In the present case, the Contract authorized termination of Brandsway for cause in the
following circumstances only: (i) failed to meet certain stated performance Metrics, or (ii)was
involved in theft, fraud or dishonesty. Other circumstances, such as disputes between personnel
or no further need of the service were not set forth as justifiable reasons for termination within
the Contract.
Accordingly, the Delshah breached the Contract and Brandsway is entitled to partial
summary judgment as to Delshah's liability therefore.
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CONCLUSION
For all of the reasons set forth herein, and in the accompanying affidavit of Levine, and
the exhibits annexed thereto, partial summary judgment on the issue of Delshah's liability should
in all respects be granted.
Dated: Armonk, New York
July 27, 2018
FISHMAN DECEA & FELDMAN
By: /s/ Thomas B. Decea
THOMAS B. DECEA
84 Business Park Drive, Suite 200
Armonk, New York 10504
(914) 285-1400
tdecea@dfdlawfirm.com
Attorneys for Plaintiffs
5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 07/27/2018 01:43 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 433 RECEIVED NYSCEF: 07/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------x BRANDSWAY HOSPITALITY, LLC a/lda BRANDSWAY HOSPITALITY, and MATTHEW LEVINE ' Index No. 652637/2013 Plaintiffs, -against- DELSHAH CAPITAL LLC, MICHAEL K. SHAH, and VICTOR JUNG, Defendants. --------------------------------------------------------------x PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT FISHMAN DECEA & FELDMAN 84 Business Park Drive, Suite 200 Armonk, New York 10504 (914) 285-1400 Attorneys for Plaintiffs 1 of 5 FILED: NEW YORK COUNTY CLERK 07/27/2018 01:43 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 433 RECEIVED NYSCEF: 07/27/2018 Prelimina Statement On March 9, 2011, plaintiff Brandsway Hospitality, LLC ("Brandsway") and defendant ("Defendant" Delshah Capital, LLC or "Delshah") entered into a contract dated March 9, 2011 "Contract" (the ). The term of the Contract was perpetuity and, in essence, required Brandsway to manage and operate a new restaurant known as Sons of Essex Restaurant ("SOE"). ("Shah" The Contract provided that Delshah and its principal, defendant Michael Shah ), could terminate the Contract for cause if Brandsway (i) failed to meet certain stated performance "Metrics" metrics (the ), or (ii) was involved in theft, fraud or dishonesty. In the event of a termination for cause, Delshah may purchase Brandsway s interest in SOE for $1. Brandsway operated the SOE restaurant for eighteen months and in that time nearly quadrupled the minimum Metrics required by the Contract. In addition, despite five years of discovery, defendants have not produced a single document hinting of Plaintiff's involvement in theft, fraud or dishonesty because there was none. In fact, during Brandsway's management of SOE flourished and became one of the most popular restaurants in New York City; its revenues were way beyond what was anticipated to say nothing of the Metrics which were far exceeded. SOE was branded by Brandsway and was by any objective standard a massive success. On or about April, 2013, eighteen months after entering the Contract Brandsway was terminated, ostensibly for cause, although there was no basis therefore other than Delshah's desire to shed its continuing obligations to Brandsway under the Contract. FACTS The facts relevant to this motion are set forth in the accompanying affirmation of Thomas ("Levine" B. Decea dated July 27, 2018 and the affidavit of Matthew Levine ) sworn to on the I 2 of 5 FILED: NEW YORK COUNTY CLERK 07/27/2018 01:43 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 433 RECEIVED NYSCEF: 07/27/2018 27th day of July, 2018. Suffice itto say that the evidence procured after more than five years of discovery in the case make it beyond any doubt that the reason for termination, however denominated by Delshah, was not and could not have been for cause; accordingly it isliable for damages under the Contract including attorney's fees as set for therein. ARGUMENT POINT I PARTIAL SUMMARY JUDGMENT AGAINST DELSHAH ON LIABILITY IS APPROPRIATE SINCE THERE EXISTS NO GENUINE ISSUE OF FACT Summary judgment is appropriate whenever a review of the entire record demonstrates fact" that there is "no genuine issue as to any material and that the movant is entitled to judgment as a matter of law. CPLR 3212; Andre v. Pomeroy, 35 N.Y.2d 361 (1974); Gibbons v. Hantman, 58 A.D.2d 108 (2d Dep't 1977), aff'd 43 N.Y.2d 1941 (1978). In such circumstances, "summary judgment is a useful device for unmasking frivolous claims and putting a swift end to meritless litigation. See Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir. 1972); American Manufacturers Mutual Insurance Co. v. American -Paramount Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 278 (2d Cir. 1967), cert denied 404 U.S. 1063, 92 S.Ct. 737, 30 L.Ed 2d 752 (1972) 6 Moore's Federal Practice 56-15[1.-0](2d ed. 1976). Thus, the mere possibility that a factual dispute may exist, without more, is not sufficient to overcome a convincing presentation by the moving party." Quinn v. Syracuse Model Neighborhood Corp.,. 613 F.2d 438 (2d Cir. 1980). Despite five years of discovery in this case, while Plaintiff has produced 4,620 pages of discovery Delshah has produced a mere 452 pages of discovery. While Delshah has deposed Brandsway's principal for nearly five full days Delshah's counsel has yet to produce itsclient for a deposition. Where a defendant has been dilatory in seeking or conducting discovery for the defense, any opposition to the instant motion on the grounds that plaintiff is possessed of 3 of 5 FILED: NEW YORK COUNTY CLERK 07/27/2018 01:43 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 433 RECEIVED NYSCEF: 07/27/2018 undisclosed facts essential to defeat the motion is entirely disingenuous. Fine Arts Enterprises, N.V. v. Levy, 149 A.D.2d 293 (1st Dep't 1990); Rothbort v. S.L.S. Management Corp.,., 185 A.D.2d 806 (2d Dep't 1992). Had the defendants employed diligent, reasonable efforts to gain knowledge of such facts during discovery proceedings the lack of knowledge claim would have been avoided. Rothbort,, supra. Instead, by employing stall tactics, the defendants have delayed these proceedings from inception, by refusing to respond to demand letters, discovery demands and follow-up letters. POINT II DELSHAH HAS VIOLATED THE CLEAR AND UNAMBIGUOUS TERMS OF THE CONTRACT AND IS LIABLE FOR SAID BREACH When, as here, the Contract defines the duration of the term (in this case in perpetuity), provides for termination in very limited circumstances and is subscribed by the party to be charged, a termination for reasons other than those specified as authorized during it term is prohibited. General Obligations Law Section 5-701[a][1]. See Rooney v. Tyson, 91 N.Y.2d 685. In the present case, the Contract authorized termination of Brandsway for cause in the following circumstances only: (i) failed to meet certain stated performance Metrics, or (ii)was involved in theft, fraud or dishonesty. Other circumstances, such as disputes between personnel or no further need of the service were not set forth as justifiable reasons for termination within the Contract. Accordingly, the Delshah breached the Contract and Brandsway is entitled to partial summary judgment as to Delshah's liability therefore. 4 of 5 FILED: NEW YORK COUNTY CLERK 07/27/2018 01:43 PM INDEX NO. 652637/2013 NYSCEF DOC. NO. 433 RECEIVED NYSCEF: 07/27/2018 CONCLUSION For all of the reasons set forth herein, and in the accompanying affidavit of Levine, and the exhibits annexed thereto, partial summary judgment on the issue of Delshah's liability should in all respects be granted. Dated: Armonk, New York July 27, 2018 FISHMAN DECEA & FELDMAN By: /s/ Thomas B. Decea THOMAS B. DECEA 84 Business Park Drive, Suite 200 Armonk, New York 10504 (914) 285-1400 tdecea@dfdlawfirm.com Attorneys for Plaintiffs 5 of 5