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 01/22/2019 11:31 AM INDEX NO. 652637/2013
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
BRANDSWAY HOSPITALITY, LLC, a/k/a Index No. 652637/2103
BRANDSWAY HOSPITALITY , INDIEFORK, LLC
And MATTHEW LEVINE,
AFFIDAVIT OF
Plaintiffs, JAMES CHOUNG
-against-
DELSHAH CAPITAL LLC, MICHAEL K. SHAH,
and VICTOR JUNG
Defendants.
-------X
STATE OF NEW YORK )
) s.s:
COUNTY OF NEW YORK )
JAMES CHOUNG, being duly swom deposes and says:
1. I am the Director of Operations for 133 ESSEX RESTAURANT LLC
Essex"
which operates the restaurant known as "Sons of ("SOE") and I have been the
Director of Operations since itopened in October, 201L As such, I have personal
knowledge of the facts alleged herein. I submit this affidavit in further support of the
defendant's cross motion to dismiss the Complaint.
2. As Director of Operations, I am familiar with all aspects of SOE such as
itsfinances, the management and training of the staff, the food and beverage purchasing,
vendor relations, marketing, and event planning. The restaurant business in New York is
very competitive, and without hard work, tough standards, and a team effort, you cannot
survive. Defendent Levine ("Levine") worked for eighteen months at SOE, and contrary
to the picture he has depicted for the Court, SOE exists today as it did when he was
working there, not because of him, but in spite of him. I believe that itis for this reason
that he seeks to destroy SOE and the reputation of the people who work tirelessly for it.
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NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019
3. As explained in my affidavit dated October 10, 2018, I have known
Levine for over 20 years. During that period of time, I worked with him on many
projects. In fact, I was part of his company, Brandsway Hospitality.
4. Since his departure from SOE, he has done allthat he can to wreak havoc
on SOE. I don't know if thisis due to the fact that the venture he pursued after he left
SOE, Chalk Point Kitchen, closed, or for other reasons. However, this does not surprise
me as none of the ventures thathe worked on, such as the Eldridge, Georgica and the
Boathouse, were successful. The team at SOE have been operating without Brandsway
and Levine for almost six years, and we would not have been able to sustain our
operation if Plaintiffs were stillon board.
5. I read his most recent diatribe against everyone affiliated with SOE and it
is apparent that his behavior has not changed. Levine knew no bounds when he was
working for SoE and he knows no bounds today, which is why he is willing to make false
swa===+• to the Court and smear eveiyuiie's reputation. He is vindictive and his vicious
attacks on everyone are proof of how desperate he isto deflect from the truth as to why
he was terminated, and to be as destructive as he can.
6. In my affidavit dated, October 10, 2018, I specifically lay out the lac+a.=œs
of theft and dishonesty on the part of the Plaintiffs, specifically, as it applies to the
misappropriation of certain funds from SOE. Levine, in his affidavit, does not dispute
the facts as provided. In•tead, he makes a general statement that he "never cut or wrote
check."
out a single Levine affidavit, paragraph 25. Again, this is a distartion of the
as he often directed how the checks should be cut.He did so in the instance of the
truth,
check for $2,500, despite the fact that I advised him that itis basically stealing. He did so
again that Plaintiffs receive $17,500, not $15,000, from SOE on a monthly
by directing
2
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FILED: NEW YORK COUNTY CLERK 01/22/2019 11:31 AM INDEX NO. 652637/2013
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019
basis, when he knew that Plaintiffs were only supposed to receive $15,000. We submitted
proof of these checks, and proof that they were directed to be cutby Plaintiffs. See Ex. G.
7. Further, in my earlier affidavit, I provided details of other specific acts
taken on the part of the Plaintiffs which demonstrated their theft and dishonesty. As
"his"
provided, Levine would not allow the hostess to seat anyone at table even though he
would not arrive for hours. This created a major opportunity loss as high paying
customers were turned away. To leave a large booth empty from Thursday through
Saturday cost the restaurant, on the average, $2,250.00 per week. He also thought nothi-ng
of having SOE comp friends of his who came in to eat and drink. It did not even matter to
him ifthe evening was slow. On an night, when we had trouble with the basemet being
completely flooded, Levine gave away $208.00 in free drink and food. However, that did
not compare to the nights when he would indulge his friends in complimentary dinners
that cost SOE $1,500.00 each night. Plaintiffs do not dispute these facts because this is
exactly what occurred.
8. Plaintiffs make the blatantly false statement that the allegations of theft
and dishonesty are new. Levine aff. Paragraph 19. His letter of termination provides that
he was terminated for misappropriating SOE monies, as does my affidavit, dated April
Plaintiffs'
30, 2013, attached hereto as Exhibit K. Clearly, memory is questionable as he
either fails to recall the facts; such as directing the cutting of checks, or giving his
approval for issuing a credit card etc., or he feigns lack of knowledge.
Plaintiffs'
9. Despite, rantings and ravings, they cannot alter the truth.
Plaintiffs were terminated for their theft and dishonesty, among other reasons, and they
do not dispute these facts.
3
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FILED: NEW YORK COUNTY CLERK 01/22/2019 11:31 AM INDEX NO. 652637/2013
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019
10. Moreover, Plaintiffs continue to make false allegations without any regard
for the truth. Levine alleges in his affidavit, that I deleted emails after I was named as a
defendant in the litigation. I could not have deleted any emails from the server as Levine
was the one that had, and stillhas, complete control over it.Levine changed the
passwords so that no one would be able to have access to the SOB email account. He did
so despita the fact that the server belongs to SOE. Counsel for Delshah has advised me
that each of the passwords for all of the employees of the SOE email account are now the
same. This was not the case prior to Levine stealing the server and changing the
password. Clearly, he changed the individual passwords to one password to make iteasy
for him to access the emails. Worse, in his most recent affidavit dated December 10,
he continues to use despite the fact that he has deletal evidence that
2018, my emails,
would allow Delshah to disprove his allegations.
11. As explained in my earlier affidavit, Levine knows that there was much
correspondence that was exchanged between the two of us, and others, during the time he
worked for SOE. This is why he continues to exploit the use of my correspondence to the
Court. He has been the sole person in control of the server hosting the æalls for SOE
since the day that he was ter=inated and had refused to turn the password over to us or
provide any access whatsoever. He had, and stillhas complete control of the server.
12. As advised by Delshah's counsel, we received an empty shell of an email
accoüñt. Hundreds of emails have been deleted over a critical time period between 2012
and 2013. Levine, in his affidavit, paragraph 90, as well as in other paragraphs, refers to
the m-gers/operators meetings which occurred on a weekly basis. We produced some
of the emails from the few that remained to da=onstrate that there were many problems
Plaintiffs'
with the operation of SOE during tenure. But, we are hampered by the fact that
4
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FILED: NEW YORK COUNTY CLERK 01/22/2019 11:31 AM INDEX NO. 652637/2013
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019
most of the relevant emails are deleted. Plaintiff should not be allowed to use my
or employee's correspondence as proof of anything, when itis clear
correpndence, any
that PlaintiEs have destroyed evidence.
Plaintiffs'
13. Further examples of outright lies to the Court is Levine's
allegations that I am an employee of Delshah and/or Shah. I am not an employee of
Delshah, nor am I an employee of Michael Shah. I never was, nor am I now. Yet, Levine
Plaintiffs'
makes these ste+emene as if were true. affidavit is riddled with false
they
statements and wild accusations, which are only intended to do harm.
14. Plaintiffs to explain their in what happened with the
try away complicity
Plaintiffs' eationa
SLA. However, allegation that they could not be rasponaible for the
Plaintiffs'
taken by the SLA against SoE as they occurred after terrdsfoñ is a farce.
15. Plaintiffs spent much of their time explaiming in Levine's affidavit how
they were the ones that interacted with the SLA. Plaintiffs, as food and beverage
"experts"
knew the rules and regulations of the SLA. SOE relied on Plaintiffs to follow
those rules and regulations. But, that did not happen and Plaintif FA knew it.Itwas for this
reason that in their vindictive nature, they went to the SLA, after the termination, and
provided the SLA with information that led to an investigation. It was Plaintiffs that put
SOE at risk in the firstplace, while they were managing SOE. Plaintiffs knew it, and
acted on itafter they were terminated, simply to get even.
Plaintiffs'
. 16. history as a food and beverage operator are replete with failures.
Plaintiffs failed in their operation of Cocktail Bodega, Rowhouse Inn and Hook&Nail,
Plaintiffs'
and after terminanon, Levine's next endeavor, Chalk Point Kitchen, closed as
well.
5
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FILED: NEW YORK COUNTY CLERK 01/22/2019 11:31 AM INDEX NO. 652637/2013
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019
Plaintiffs'
17. were very quick to spend Michael Shah's money as he invested
over one million dollars in SOE as opposed to Plaintiffs who made no capital invee·--ent.
This may be the reason that Plaintiffs ignore the impact of their failures. The rosy picture
that Plaintiffs paint of the quality of their work is not grounded in reality. Plaintiffs depict
their involvement in SOE, for the 18 months that they were there, as the key reason that
SOE is stillin business, but that cannot be further from the truth. The reason that SOE
Plaintiffs'
survived tenure, and is stilloperating in this very tough industry, is due to
Michael Shah's investment of his money into the restaurant, and the dedication and
commitment of itsstaff. We survived despite the Plaintiffs.
18. Plaintiffs are acting out of anger and revenge and a bogus sense of
entidement, but they cannot change the undisputed facts. Plaintiffs were terminated for
their theft and dishoñesty, for misappropriating SOE's assets, as well as for failing to
meet the metrics and putting us at risk with the SLA. Plaintiffs have chosen to disregard
the allegations as to theirtheft and dichonesty, and attempt to depict themselves as
righteous, but, that depiction is a sham. Plaintiffs took that which did not belong to them,
and, worse, they have attempted to destroy SOE and ruin people's reputation.
19. As the Director of Operations of Son of Essex, and on behalf of all of the
employees of Sons of Essex, we respectfully request that the Court strike Levine's
and grant the Dafendants the relief have requested in their motiona in
Complaint they
their entirety so that we may move on and the restaurant may survive.
Dated: January, 2019
6
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FILED: NEW YORK COUNTY CLERK 01/22/2019 11:31 AM INDEX NO. 652637/2013
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019
On the day of in the year 2019 efore me, the undersigned, a
Notary Public in and for said state, onally appeared JAMES CHOUNG, personally
known to me or proved to me on basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument, the
individual, or the rson upon behalf of which the individual acted, executed the
ent.
NO ARY PUBLIC
BONN) C. UPPMAN
NOTARY PUBLIC-STATE OF NEW YORK
No. 01U6202911
Qualified in New York County
My Commission ExpiresMarch 30, 24% ÚÛ
7
7 of 7
Preview
FILED: NEW YORK COUNTY CLERK 01/22/2019 11:31 AM INDEX NO. 652637/2013 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X BRANDSWAY HOSPITALITY, LLC, a/k/a Index No. 652637/2103 BRANDSWAY HOSPITALITY , INDIEFORK, LLC And MATTHEW LEVINE, AFFIDAVIT OF Plaintiffs, JAMES CHOUNG -against- DELSHAH CAPITAL LLC, MICHAEL K. SHAH, and VICTOR JUNG Defendants. -------X STATE OF NEW YORK ) ) s.s: COUNTY OF NEW YORK ) JAMES CHOUNG, being duly swom deposes and says: 1. I am the Director of Operations for 133 ESSEX RESTAURANT LLC Essex" which operates the restaurant known as "Sons of ("SOE") and I have been the Director of Operations since itopened in October, 201L As such, I have personal knowledge of the facts alleged herein. I submit this affidavit in further support of the defendant's cross motion to dismiss the Complaint. 2. As Director of Operations, I am familiar with all aspects of SOE such as itsfinances, the management and training of the staff, the food and beverage purchasing, vendor relations, marketing, and event planning. The restaurant business in New York is very competitive, and without hard work, tough standards, and a team effort, you cannot survive. Defendent Levine ("Levine") worked for eighteen months at SOE, and contrary to the picture he has depicted for the Court, SOE exists today as it did when he was working there, not because of him, but in spite of him. I believe that itis for this reason that he seeks to destroy SOE and the reputation of the people who work tirelessly for it. 1 of 7 FILED: NEW YORK COUNTY CLERK 01/22/2019 11:31 AM INDEX NO. 652637/2013 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019 3. As explained in my affidavit dated October 10, 2018, I have known Levine for over 20 years. During that period of time, I worked with him on many projects. In fact, I was part of his company, Brandsway Hospitality. 4. Since his departure from SOE, he has done allthat he can to wreak havoc on SOE. I don't know if thisis due to the fact that the venture he pursued after he left SOE, Chalk Point Kitchen, closed, or for other reasons. However, this does not surprise me as none of the ventures thathe worked on, such as the Eldridge, Georgica and the Boathouse, were successful. The team at SOE have been operating without Brandsway and Levine for almost six years, and we would not have been able to sustain our operation if Plaintiffs were stillon board. 5. I read his most recent diatribe against everyone affiliated with SOE and it is apparent that his behavior has not changed. Levine knew no bounds when he was working for SoE and he knows no bounds today, which is why he is willing to make false swa===+• to the Court and smear eveiyuiie's reputation. He is vindictive and his vicious attacks on everyone are proof of how desperate he isto deflect from the truth as to why he was terminated, and to be as destructive as he can. 6. In my affidavit dated, October 10, 2018, I specifically lay out the lac+a.=œs of theft and dishonesty on the part of the Plaintiffs, specifically, as it applies to the misappropriation of certain funds from SOE. Levine, in his affidavit, does not dispute the facts as provided. In•tead, he makes a general statement that he "never cut or wrote check." out a single Levine affidavit, paragraph 25. Again, this is a distartion of the as he often directed how the checks should be cut.He did so in the instance of the truth, check for $2,500, despite the fact that I advised him that itis basically stealing. He did so again that Plaintiffs receive $17,500, not $15,000, from SOE on a monthly by directing 2 2 of 7 FILED: NEW YORK COUNTY CLERK 01/22/2019 11:31 AM INDEX NO. 652637/2013 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019 basis, when he knew that Plaintiffs were only supposed to receive $15,000. We submitted proof of these checks, and proof that they were directed to be cutby Plaintiffs. See Ex. G. 7. Further, in my earlier affidavit, I provided details of other specific acts taken on the part of the Plaintiffs which demonstrated their theft and dishonesty. As "his" provided, Levine would not allow the hostess to seat anyone at table even though he would not arrive for hours. This created a major opportunity loss as high paying customers were turned away. To leave a large booth empty from Thursday through Saturday cost the restaurant, on the average, $2,250.00 per week. He also thought nothi-ng of having SOE comp friends of his who came in to eat and drink. It did not even matter to him ifthe evening was slow. On an night, when we had trouble with the basemet being completely flooded, Levine gave away $208.00 in free drink and food. However, that did not compare to the nights when he would indulge his friends in complimentary dinners that cost SOE $1,500.00 each night. Plaintiffs do not dispute these facts because this is exactly what occurred. 8. Plaintiffs make the blatantly false statement that the allegations of theft and dishonesty are new. Levine aff. Paragraph 19. His letter of termination provides that he was terminated for misappropriating SOE monies, as does my affidavit, dated April Plaintiffs' 30, 2013, attached hereto as Exhibit K. Clearly, memory is questionable as he either fails to recall the facts; such as directing the cutting of checks, or giving his approval for issuing a credit card etc., or he feigns lack of knowledge. Plaintiffs' 9. Despite, rantings and ravings, they cannot alter the truth. Plaintiffs were terminated for their theft and dishonesty, among other reasons, and they do not dispute these facts. 3 3 of 7 FILED: NEW YORK COUNTY CLERK 01/22/2019 11:31 AM INDEX NO. 652637/2013 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019 10. Moreover, Plaintiffs continue to make false allegations without any regard for the truth. Levine alleges in his affidavit, that I deleted emails after I was named as a defendant in the litigation. I could not have deleted any emails from the server as Levine was the one that had, and stillhas, complete control over it.Levine changed the passwords so that no one would be able to have access to the SOB email account. He did so despita the fact that the server belongs to SOE. Counsel for Delshah has advised me that each of the passwords for all of the employees of the SOE email account are now the same. This was not the case prior to Levine stealing the server and changing the password. Clearly, he changed the individual passwords to one password to make iteasy for him to access the emails. Worse, in his most recent affidavit dated December 10, he continues to use despite the fact that he has deletal evidence that 2018, my emails, would allow Delshah to disprove his allegations. 11. As explained in my earlier affidavit, Levine knows that there was much correspondence that was exchanged between the two of us, and others, during the time he worked for SOE. This is why he continues to exploit the use of my correspondence to the Court. He has been the sole person in control of the server hosting the æalls for SOE since the day that he was ter=inated and had refused to turn the password over to us or provide any access whatsoever. He had, and stillhas complete control of the server. 12. As advised by Delshah's counsel, we received an empty shell of an email accoüñt. Hundreds of emails have been deleted over a critical time period between 2012 and 2013. Levine, in his affidavit, paragraph 90, as well as in other paragraphs, refers to the m-gers/operators meetings which occurred on a weekly basis. We produced some of the emails from the few that remained to da=onstrate that there were many problems Plaintiffs' with the operation of SOE during tenure. But, we are hampered by the fact that 4 4 of 7 FILED: NEW YORK COUNTY CLERK 01/22/2019 11:31 AM INDEX NO. 652637/2013 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019 most of the relevant emails are deleted. Plaintiff should not be allowed to use my or employee's correspondence as proof of anything, when itis clear correpndence, any that PlaintiEs have destroyed evidence. Plaintiffs' 13. Further examples of outright lies to the Court is Levine's allegations that I am an employee of Delshah and/or Shah. I am not an employee of Delshah, nor am I an employee of Michael Shah. I never was, nor am I now. Yet, Levine Plaintiffs' makes these ste+emene as if were true. affidavit is riddled with false they statements and wild accusations, which are only intended to do harm. 14. Plaintiffs to explain their in what happened with the try away complicity Plaintiffs' eationa SLA. However, allegation that they could not be rasponaible for the Plaintiffs' taken by the SLA against SoE as they occurred after terrdsfoñ is a farce. 15. Plaintiffs spent much of their time explaiming in Levine's affidavit how they were the ones that interacted with the SLA. Plaintiffs, as food and beverage "experts" knew the rules and regulations of the SLA. SOE relied on Plaintiffs to follow those rules and regulations. But, that did not happen and Plaintif FA knew it.Itwas for this reason that in their vindictive nature, they went to the SLA, after the termination, and provided the SLA with information that led to an investigation. It was Plaintiffs that put SOE at risk in the firstplace, while they were managing SOE. Plaintiffs knew it, and acted on itafter they were terminated, simply to get even. Plaintiffs' . 16. history as a food and beverage operator are replete with failures. Plaintiffs failed in their operation of Cocktail Bodega, Rowhouse Inn and Hook&Nail, Plaintiffs' and after terminanon, Levine's next endeavor, Chalk Point Kitchen, closed as well. 5 5 of 7 FILED: NEW YORK COUNTY CLERK 01/22/2019 11:31 AM INDEX NO. 652637/2013 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019 Plaintiffs' 17. were very quick to spend Michael Shah's money as he invested over one million dollars in SOE as opposed to Plaintiffs who made no capital invee·--ent. This may be the reason that Plaintiffs ignore the impact of their failures. The rosy picture that Plaintiffs paint of the quality of their work is not grounded in reality. Plaintiffs depict their involvement in SOE, for the 18 months that they were there, as the key reason that SOE is stillin business, but that cannot be further from the truth. The reason that SOE Plaintiffs' survived tenure, and is stilloperating in this very tough industry, is due to Michael Shah's investment of his money into the restaurant, and the dedication and commitment of itsstaff. We survived despite the Plaintiffs. 18. Plaintiffs are acting out of anger and revenge and a bogus sense of entidement, but they cannot change the undisputed facts. Plaintiffs were terminated for their theft and dishoñesty, for misappropriating SOE's assets, as well as for failing to meet the metrics and putting us at risk with the SLA. Plaintiffs have chosen to disregard the allegations as to theirtheft and dichonesty, and attempt to depict themselves as righteous, but, that depiction is a sham. Plaintiffs took that which did not belong to them, and, worse, they have attempted to destroy SOE and ruin people's reputation. 19. As the Director of Operations of Son of Essex, and on behalf of all of the employees of Sons of Essex, we respectfully request that the Court strike Levine's and grant the Dafendants the relief have requested in their motiona in Complaint they their entirety so that we may move on and the restaurant may survive. Dated: January, 2019 6 6 of 7 FILED: NEW YORK COUNTY CLERK 01/22/2019 11:31 AM INDEX NO. 652637/2013 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 01/22/2019 On the day of in the year 2019 efore me, the undersigned, a Notary Public in and for said state, onally appeared JAMES CHOUNG, personally known to me or proved to me on basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the rson upon behalf of which the individual acted, executed the ent. NO ARY PUBLIC BONN) C. UPPMAN NOTARY PUBLIC-STATE OF NEW YORK No. 01U6202911 Qualified in New York County My Commission ExpiresMarch 30, 24% ÚÛ 7 7 of 7