Preview
(FILED:
WESTCHESTER
COUNTY CLERK 0572172013) INDEX NO. 55002/2011
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 05/21/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
wane ene ene ene n ene nn ene n en ennenenennX
JAMES DIMOPOULOS and STAVROS
DIMOPOULOS,
Index No.: 55002/11
Plaintiffs,
-against-
RONALD CAPOSELLA, SHORE LINE
FOODS, INC., SHORE LINE FOODS OF
EDGEWOOD, INC. and SHORE LINE
FOODS OF NEW JERSEY, INC.,
Defendants.
=X
AMENDED ANSWER WITH COUNTERCLAIMS
Defendants Ronald Caposella, Shore Line Foods, Inc., Shore Line Foods of Edgewood,
Inc. and Shore Line Foods of New Jersey, Inc. (collectively, the “Defendants”), by their counsel,
Hass & Gottlieb, as and for their amended answer to the complaint herein dated the 26th day of
August, 2011 (the “Complaint”), aver as follows:
1 Deny knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations contained in {1 of the Complaint.
2. Deny knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations contained in §2 of the Complaint.
3 Deny knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations contained in {8 of the Complaint.
4. Deny knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations contained in 49 of the Complaint.
5 Deny the allegations contained in 13 of the Complaint and refer to the agreement
at issue for its specific terms and conditions.
6. Deny the allegations contained in 14 of the Complaint.
7 Deny the allegations contained in 15 of the Complaint.
8 Deny the allegations contained in 416 of the Complaint.
9. Deny the allegations contained in 917 of the Complaint.
10. Deny the allegations contained in 19 of the Complaint.
11 Deny the allegations contained in §25 of the Complaint
12 Deny knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations contained in 28 of the Complaint.
13. Deny the allegations contained in 29 of the Complaint.
14. Deny knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations contained in 930 of the Complaint.
15. Deny knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations contained in 31 of the Complaint.
16. Deny the allegations contained in 32 of the Complaint.
17, Deny the allegations contained in [33 of the Complaint.
18 Deny the allegations contained in §34 of the Complaint.
19 Deny the allegations contained in 35 of the Complaint.
20 Deny the allegations contained in §36 of the Complaint.
21 Deny the allegations contained in §37 of the Complaint.
22 Deny the allegations contained in {38 of the Complaint.
23. With respect to [39 of the Complaint, repeat and reallege each and every denial
and denial of knowledge or information sufficient to form a belief, as set forth above.
24, Deny the allegations contained in 40 of the Complaint.
25. Deny the allegations contained in §41 of the Complaint.
26. Deny the allegations contained in 42 of the Complaint.
27. Deny the allegations contained in 43 of the Complaint.
28. Deny the allegations contained in 44 of the Complaint.
29. Deny the allegations contained in 945 of the Complaint
30. Deny the allegations contained in {46 of the Complaint.
31. Deny the allegations contained in 47 of the Complaint.
32. With respect to [48 of the Complaint, repeat and reallege each and every denial
and denial of knowledge or information sufficient to form a belief, as set forth above.
33. Deny the allegations contained in 450 of the Complaint.
34. Deny the allegations contained in {51 of the Complaint.
35. Deny the allegations contained in 52 of the Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
36. The Complaint and each of the causes of action contained therein, fail to state a
cause of action upon which relief may be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
37. The Complaint should be dismissed because the causes of action alleged therein
are in the nature of shareholder derivative claims and not personal to the plaintiffs.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
38. The Complaint should be dismissed premised upon the Statute of Frauds.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
39. The Complaint should be dismissed inasmuch as it seeks to pierce the corporate
veil and ascribe personal liability to Ronald Caposella in conclusory fashion and without the
requisite particularity.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE AND FIRST COUNTERCLAIM
40. Defendants and counterclaim plaintiffs Ronald Caposella (“R. Caposella”),
individually and derivatively (on behalf of Shore Line Foods of Edgewood, Inc. and Shore Line
Foods of New Jersey, Inc.), Shore Line Foods, Inc. (“Shore Line Inc.”), Shore Line Foods of
Edgewood, Inc. (“Shore Line Edgewood”) and Shore Line Foods of New Jersey (“Shore Line
NJ”)(collectively, the “Defendants”) repeat and reallege each and every allegation set forth in
{1-39 as if more fully and completely set forth herein.
41. At all relevant times, R. Caposella was an individual residing in the County of
Westchester, New York
42. At all relevant times, Shore Line Inc. was a domestic corporation, organized and
existing pursuant to the laws of the State of New York.
43. At all relevant times, Shore Line Edgewood was a domestic corporation,
organized and existing pursuant to the laws of the State of New York.
44, At all relevant times, Shore Line NJ was a domestic corporation, organized and
existing pursuant to the laws of the State of New Jersey (hereinafter, Shore Line Inc., Shore Line
Edgewood and Shore Line NJ shall be termed, collectively, the “Corporate Defendants”).
45. At all relevant times, R. Caposella was the president and sole shareholder of
Shore Line Inc.
46. At all relevant times, R. Caposella was the president and 51% shareholder of
Shore Line Edgewood.
47. At all relevant times, R. Caposella was the president and 51% shareholder of
Shore Line NJ.
48. At all relevant times, upon information and belief, plaintiff James Dimopoulos
(“J. Dimopoulos”) was an individual residing in the County of Westchester.
49. At all relevant times, upon information and belief, plaintiff Stavros Dimopoulos
(“S. Dimopoulos”) was an individual residing in the County of Westchester.
50. At all relevant times, J. Dimopoulos was the 49% shareholder of Shore Line NJ.
51. At all relevant times, S. Dimopoulos was the 49% shareholder of Shore Line
Edgewood.
52. At all relevant times, Broadridge Securities Processing Solutions, Inc.
(“Broadridge”) was a public company trading on the New York Stock Exchange.
53. At all relevant times, Broadridge maintained two employee cafeterias in
Edgewood, New York (the “Edgewood Locations”).
54, At all relevant times, Broadridge maintained one employee cafeteria in Journal
Square, New Jersey (the “Jersey City Location”)(hereinafter, the Edgewood Locations and
Jersey City Location may be termed, collectively, as the “Locations”).
55. The Locations are maintained by Broadridge as employees’-only cafeterias and
vending machines, through which employees are able to buy food at deeply discounted prices.
56. To service this operation, Broadridge engages the services of a third-party
operator responsible for the purchase, preparation and supply of food to the employees, running
the cafeteria and supplying the vending machines and catering as an independent business
separate and apart from that of Broadridge. The operator must purchase all food and supplies,
maintain all equipment supplied by Broadridge (but for the cash register and scales), hire
employees to prepare, cook, clean and collect the days’ receipts for the meals served by the
operator and paid for by the employee-customers. In addition, the operator must insure its
employees and supply Broadridge with detailed monthly invoices and operating reports with
respect to all aspects of the business.
57. The prices paid by at the Locations by Broadridge employees are deeply
discounted from retail prices, with the prices fixed by Broadridge in a detailed schedule that
forms a part of the contract between Broadridge and its cafeteria operator.
58. A component of the operation of the business is the subsidy paid by Broadridge to
the cafeteria operator.
59. This subsidy is likewise fixed in the agreement between the operator and
Broadridge, and is designed, at least in theory, to cover the difference between the discounted
prices charged to the cafeteria users and the actual cost to the operator in running the business,
together with some measure of profit to the operator.
60. In or about February, 2010, R. Caposella was approached by Jim Martin, a vice
president of procurement for Broadridge who advised that the contract for the operation of the
Locations was going to be up for bidding through a formal request for proposal or “RFP”
process.
61. In or about March, 2010, R. Caposella responded to the RFP by submitting a
formal proposal to Broadridge (the “Proposal”).
62. At all relevant times, J. Dimopoulos, upon information and belief, was the owner
and operator of the Bedford Diner located at 710 Bedford Road, Bedford Hills, New York.
63. Premised upon his perceived experience, R. Caposella asked J. Dimopoulos as to
whether he was interested in an opportunity, for a somewhat minimal investment, in working in
the Locations if the Proposal were accepted.
64, J. Dimopoulos agreed to explore the business opportunity, if the Proposal were
accepted by Broadridge.
65. If the Proposal were accepted by Broadridge, it was agreed that J. Dimopoulos
would engage the services of his son, S. Dimopoulos.
66. If the Proposal were accepted by Broadridge, it was agreed that J. Dimopoulos
would engage the services of his daughter Efstathia or “Stacy.”
67. In the spring of 2010, the Proposal was accepted by Broadridge.
68. From spring 2010 through February, 2011, R. Caposella negotiated the terms of
an agreement with Broadridge premised upon the accepted Proposal.
69. It was agreed among R. Caposella, J. Dimopoulos and S. Dimopoulos, that R.
Caposella would retain control over the entire operation by the formation of Shore Line Inc., a
corporation of which he would own 100% of the issued and outstanding shares of stock and
which would be used to enter into the contract with Broadridge.
70. It was agreed among R. Caposella, J. Dimopoulos and S. Dimopoulos, that R.
Caposella would form Shore Line Edgewood with 51% owned by R. Caposella and 49% by S.
Dimopoulos to operate the two Edgewood Locations, which would be overseen by S.
Dimopoulos.
71. It was agreed among R. Caposella, J. Dimopoulos and S. Dimopoulos, that R.
Caposella would form Shore Line NJ with 51% owned by R. Caposella and 49% by J.
Dimopoulos, to operate the Jersey City Location and which would be overseen by J. Dimopoulos
with the assistance of his daughter, who did not have an ownership interest.
72. By contract dated February 22, 2011, Shore Line Inc. entered into an agreement
with Broadridge premised upon the accepted Proposal.
73. Commencing March 1, 2011, Shore Line Edgewood and Shore Line NJ started to
operate the cafeterias and vending machines at the Locations.
74. S. Dimopoulos was assigned to run the one of the Edgewood Locations.
75. J. Dimopoulos was assigned to run the Jersey City Location, with his daughter,
Stacy, serving as cashier.
76. Despite his representations to the contrary, S. Dimopoulos was not fully
committed to running the cafeteria to which he was assigned.
77. Despite his representations to the contrary, S. Dimopoulos did not fulfill his
obligations in running one of the Edgewood Locations as he consistently and repeatedly arrived
late, took multiple long cigarette and health club breaks.
78. Despite his representations to the contrary, S. Dimopoulos stopped working at the
Edgewood Location to which he was assigned within two months after commencement.
79. Despite his representations to the contrary, J. Dimopoulos failed to properly
operate the Jersey City Location.
80. Despite his representations to the contrary, J. Dimopoulos failed to perform
standard maintenance of the Jersey City Location cafeteria.
81. Despite his representations to the contrary, J. Dimopoulos failed to maintain
adequate food supplies at the Jersey City Location.
82. Despite his representations to the contrary, J. Dimopoulos did not maintain
requisite decorum at the Jersey City Location, engaging with his daughter (who operated the
cash register) in heated arguments in the cafeteria in the presence of Broadridge employees.
83. Despite his representations to the contrary, J. Dimopoulos was frequently not on
site to oversee the cafeteria’s operations.
84. In May, 2011, Nancy Towner, the vice president of procurement for Broadridge
was confronted by J. Dimopoulos in the hallway of the New Jersey office building from which
the Jersey City Location was operated.
85. As a direct result of that confrontation, Broadridge security escorted J.
Dimopoulos from the building, from which he was permanently barred.
86. Since the date of his forced removal from the New Jersey office building from
which the Jersey City Location was operated, J. Dimopoulos has failed to render any services on
behalf of Shore Line Inc., Shore Line Edgewood or Shore Line NJ.
87. As a direct result of the departure from the Edgewood Location and Jersey City
Location by J. Dimopoulos and S. Dimopoulos, the Corporate Defendants were forced to hire
two managers to replace them (the “Replacement Managers”).
88. One of the Replacement Managers is paid an annual salary of $45,000.00, the
other an annual salary of $53,000.00.
89. Since the date of the formation of Shore Line Edgewood, there has been no profit
generated.
90. Since the date of the formation of Shore Line Edgewood, S. Dimopoulos has
enjoyed the benefit of losses as shown on K-1’s issued by that corporation.
91. Since the date of the formation of Shore Line NJ, there has been no profit
generated.
92. Since the date of the formation of Shore Line NJ, J. Dimopoulos has enjoyed the
benefit of losses as shown on K-1’s issued by that corporation.
93. After J. Dimopoulos was banned from the Jersey City Location he admitted that
he had “withheld” for his own benefit, the deposit of not less than $3,000.00 in cash receipts
from that cafeteria operation.
94. Defendants are uncertain as to whether J. Dimopoulos failed to deposit additional
cash receipts from the operation of the Jersey City Location.
95. J. Dimopoulos does not have any equity in Shore Line NJ.
96. S. Dimopoulos does not have any equity in Shore Line Edgewood.
97. The actions of J. Dimopoulos as detailed herein constitute a breach of the
fiduciary obligations between him and Shore Line NJ inasmuch as he failed to render services
and otherwise fulfill his fiduciary obligations to Shore Line NJ.
98. The actions of S. Dimopoulos as detailed herein constitute a breach of the
fiduciary obligations between him and Shore Line Edgewood inasmuch as he failed to render
services and otherwise fulfill his fiduciary obligations to Shore Line Edgewood.
99. As a result of the foregoing, the Corporate Defendants have suffered damages in a
sum to be determined, but believed to be not less than $10,000.00.
100. Demand upon the other shareholder of Shoreline Edgewood to seek the relief
sought herein would be futile.
101. Demand upon the other shareholder of Shoreline NJ to seek the relief sought
herein would be futile.
10
102. As a result of the foregoing, R. Caposella, in his derivative capacity as
shareholder of Shoreline Edgewood and Shore Line NJ, should recover of J. Dimopoulos and S.
Dimopoulos, judgment in the sum of not less than $10,000.00, together with interest and costs.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE AND SECOND COUNTERCLAIM
103. Defendants and counterclaim plaintiffs R. Caposella derivatively on behalf of and
for the benefit of Shore Line Edgewood and Shore Line NJ repeat and reallege each and every
allegation set forth in §§1-102 as if more fully and completely set forth herein.
104. Premised upon the determination by R. Caposella as president of Shore Line NJ,
that Shore Line NJ was undercapitalized by $20,000.00, by check dated May 15, 2013, Caposella
deposited personal funds in the sum of $10,200.00 into the operating account of Shore Line NJ.
105. Premised upon the determination by R. Caposella as president of Shore Line
Edgewood, that Shore Line Edgewood was undercapitalized by $20,000.00, by check dated May
15, 2013, Caposella deposited personal funds in the sum of $10,200.00 into the operating
account of Shore Line Edgewood.
106. By written demand of R. Caposella as president of Shore Line Edgewood dated
May 10, 2013, Shore Line Edgewood made demand of S. Dimopoulos to remit capital in the sum
of $9,800.00 for the benefit of Shore Line Edgewood (the “Edgewood Capital Call”).
107. By written demand of R. Caposella as president of Shore Line NJ dated May 10,
2013, Shore Line NJ made demand of J. Dimopoulos to remit capital in the sum of $9,800.00 for
the benefit of Shore Line NJ (the “NJ Capital Call”).
108. Notwithstanding the Edgewood Capital Call, S. Dimopoulos has refused to meet
the monetary demand.
11
109. Notwithstanding the NJ Capital Call, J. Dimopoulos has refused to meet the
monetary demand.
110. Additional demand upon the other shareholder of Shoreline Edgewood to seek the
relief sought herein would be futile.
111. Additional demand upon the other shareholder of Shoreline NJ to seek the relief
sought herein would be futile.
112. As a result of the foregoing, R. Caposella, in his derivative capacity as
shareholder and for the benefit of Shoreline Edgewood and Shore Line NJ, should recover from
each S. Dimopoulos and J. Dimopoulos, respectively, judgment in the sum of not less than
$9,800.00 each, for a total judgment of $19,600.00, together with interest and costs.
WHEREFORE, Defendants request that judgment be entered follows: a) dismissing the
Complaint, in its entirety, together with costs; b) on the first counterclaim, judgment in favor of
Defendants, including but not limited to R. Caposella in his derivative capacity as shareholder of
Shore Line Edgewood and Shore Line New Jersey, against the Plaintiffs in the sum of not less
than $10,000.00 together with interest and costs; c) on the second counterclaim, judgment in
favor of R. Caposella in his derivative capacity as shareholder of and for the benefit of Shore
Line Edgewood and Shore Line New Jersey against the Plaintiffs S. Dimopoulos and J.
Dimopoulos, respectively, each in the sum of not less than $9,800.00, for a total of $19,600.00,
together with interest and costs, together with such other and further relief as this Court deems to
be just, equitable and proper.
12
Dated: Scarsdale, New York
May2l, 2013
HAS & GO LIEB
bitTieb
orneys for Defpfidants
670 White Plai 9 uite 121
Scarsdale, New Y: ork 105 83
(914) 725-2600
TO:
ANDREW BRODNICK, ESQ.
Attorney for Plaintiffs
126 Barker Street
Mount Kisco, New York 10549
(914) 244-0060
13
Preview
(FILED: WESTCHESTER COUNTY CLERK 0572172013) INDEX NO. 55002/2011 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 05/21/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER wane ene ene ene n ene nn ene n en ennenenennX JAMES DIMOPOULOS and STAVROS DIMOPOULOS, Index No.: 55002/11 Plaintiffs, -against- RONALD CAPOSELLA, SHORE LINE FOODS, INC., SHORE LINE FOODS OF EDGEWOOD, INC. and SHORE LINE FOODS OF NEW JERSEY, INC., Defendants. =X AMENDED ANSWER WITH COUNTERCLAIMS Defendants Ronald Caposella, Shore Line Foods, Inc., Shore Line Foods of Edgewood, Inc. and Shore Line Foods of New Jersey, Inc. (collectively, the “Defendants”), by their counsel, Hass & Gottlieb, as and for their amended answer to the complaint herein dated the 26th day of August, 2011 (the “Complaint”), aver as follows: 1 Deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in {1 of the Complaint. 2. Deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in §2 of the Complaint. 3 Deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in {8 of the Complaint. 4. Deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in 49 of the Complaint. 5 Deny the allegations contained in 13 of the Complaint and refer to the agreement at issue for its specific terms and conditions. 6. Deny the allegations contained in 14 of the Complaint. 7 Deny the allegations contained in 15 of the Complaint. 8 Deny the allegations contained in 416 of the Complaint. 9. Deny the allegations contained in 917 of the Complaint. 10. Deny the allegations contained in 19 of the Complaint. 11 Deny the allegations contained in §25 of the Complaint 12 Deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in 28 of the Complaint. 13. Deny the allegations contained in 29 of the Complaint. 14. Deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in 930 of the Complaint. 15. Deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in 31 of the Complaint. 16. Deny the allegations contained in 32 of the Complaint. 17, Deny the allegations contained in [33 of the Complaint. 18 Deny the allegations contained in §34 of the Complaint. 19 Deny the allegations contained in 35 of the Complaint. 20 Deny the allegations contained in §36 of the Complaint. 21 Deny the allegations contained in §37 of the Complaint. 22 Deny the allegations contained in {38 of the Complaint. 23. With respect to [39 of the Complaint, repeat and reallege each and every denial and denial of knowledge or information sufficient to form a belief, as set forth above. 24, Deny the allegations contained in 40 of the Complaint. 25. Deny the allegations contained in §41 of the Complaint. 26. Deny the allegations contained in 42 of the Complaint. 27. Deny the allegations contained in 43 of the Complaint. 28. Deny the allegations contained in 44 of the Complaint. 29. Deny the allegations contained in 945 of the Complaint 30. Deny the allegations contained in {46 of the Complaint. 31. Deny the allegations contained in 47 of the Complaint. 32. With respect to [48 of the Complaint, repeat and reallege each and every denial and denial of knowledge or information sufficient to form a belief, as set forth above. 33. Deny the allegations contained in 450 of the Complaint. 34. Deny the allegations contained in {51 of the Complaint. 35. Deny the allegations contained in 52 of the Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 36. The Complaint and each of the causes of action contained therein, fail to state a cause of action upon which relief may be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 37. The Complaint should be dismissed because the causes of action alleged therein are in the nature of shareholder derivative claims and not personal to the plaintiffs. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 38. The Complaint should be dismissed premised upon the Statute of Frauds. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 39. The Complaint should be dismissed inasmuch as it seeks to pierce the corporate veil and ascribe personal liability to Ronald Caposella in conclusory fashion and without the requisite particularity. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE AND FIRST COUNTERCLAIM 40. Defendants and counterclaim plaintiffs Ronald Caposella (“R. Caposella”), individually and derivatively (on behalf of Shore Line Foods of Edgewood, Inc. and Shore Line Foods of New Jersey, Inc.), Shore Line Foods, Inc. (“Shore Line Inc.”), Shore Line Foods of Edgewood, Inc. (“Shore Line Edgewood”) and Shore Line Foods of New Jersey (“Shore Line NJ”)(collectively, the “Defendants”) repeat and reallege each and every allegation set forth in {1-39 as if more fully and completely set forth herein. 41. At all relevant times, R. Caposella was an individual residing in the County of Westchester, New York 42. At all relevant times, Shore Line Inc. was a domestic corporation, organized and existing pursuant to the laws of the State of New York. 43. At all relevant times, Shore Line Edgewood was a domestic corporation, organized and existing pursuant to the laws of the State of New York. 44, At all relevant times, Shore Line NJ was a domestic corporation, organized and existing pursuant to the laws of the State of New Jersey (hereinafter, Shore Line Inc., Shore Line Edgewood and Shore Line NJ shall be termed, collectively, the “Corporate Defendants”). 45. At all relevant times, R. Caposella was the president and sole shareholder of Shore Line Inc. 46. At all relevant times, R. Caposella was the president and 51% shareholder of Shore Line Edgewood. 47. At all relevant times, R. Caposella was the president and 51% shareholder of Shore Line NJ. 48. At all relevant times, upon information and belief, plaintiff James Dimopoulos (“J. Dimopoulos”) was an individual residing in the County of Westchester. 49. At all relevant times, upon information and belief, plaintiff Stavros Dimopoulos (“S. Dimopoulos”) was an individual residing in the County of Westchester. 50. At all relevant times, J. Dimopoulos was the 49% shareholder of Shore Line NJ. 51. At all relevant times, S. Dimopoulos was the 49% shareholder of Shore Line Edgewood. 52. At all relevant times, Broadridge Securities Processing Solutions, Inc. (“Broadridge”) was a public company trading on the New York Stock Exchange. 53. At all relevant times, Broadridge maintained two employee cafeterias in Edgewood, New York (the “Edgewood Locations”). 54, At all relevant times, Broadridge maintained one employee cafeteria in Journal Square, New Jersey (the “Jersey City Location”)(hereinafter, the Edgewood Locations and Jersey City Location may be termed, collectively, as the “Locations”). 55. The Locations are maintained by Broadridge as employees’-only cafeterias and vending machines, through which employees are able to buy food at deeply discounted prices. 56. To service this operation, Broadridge engages the services of a third-party operator responsible for the purchase, preparation and supply of food to the employees, running the cafeteria and supplying the vending machines and catering as an independent business separate and apart from that of Broadridge. The operator must purchase all food and supplies, maintain all equipment supplied by Broadridge (but for the cash register and scales), hire employees to prepare, cook, clean and collect the days’ receipts for the meals served by the operator and paid for by the employee-customers. In addition, the operator must insure its employees and supply Broadridge with detailed monthly invoices and operating reports with respect to all aspects of the business. 57. The prices paid by at the Locations by Broadridge employees are deeply discounted from retail prices, with the prices fixed by Broadridge in a detailed schedule that forms a part of the contract between Broadridge and its cafeteria operator. 58. A component of the operation of the business is the subsidy paid by Broadridge to the cafeteria operator. 59. This subsidy is likewise fixed in the agreement between the operator and Broadridge, and is designed, at least in theory, to cover the difference between the discounted prices charged to the cafeteria users and the actual cost to the operator in running the business, together with some measure of profit to the operator. 60. In or about February, 2010, R. Caposella was approached by Jim Martin, a vice president of procurement for Broadridge who advised that the contract for the operation of the Locations was going to be up for bidding through a formal request for proposal or “RFP” process. 61. In or about March, 2010, R. Caposella responded to the RFP by submitting a formal proposal to Broadridge (the “Proposal”). 62. At all relevant times, J. Dimopoulos, upon information and belief, was the owner and operator of the Bedford Diner located at 710 Bedford Road, Bedford Hills, New York. 63. Premised upon his perceived experience, R. Caposella asked J. Dimopoulos as to whether he was interested in an opportunity, for a somewhat minimal investment, in working in the Locations if the Proposal were accepted. 64, J. Dimopoulos agreed to explore the business opportunity, if the Proposal were accepted by Broadridge. 65. If the Proposal were accepted by Broadridge, it was agreed that J. Dimopoulos would engage the services of his son, S. Dimopoulos. 66. If the Proposal were accepted by Broadridge, it was agreed that J. Dimopoulos would engage the services of his daughter Efstathia or “Stacy.” 67. In the spring of 2010, the Proposal was accepted by Broadridge. 68. From spring 2010 through February, 2011, R. Caposella negotiated the terms of an agreement with Broadridge premised upon the accepted Proposal. 69. It was agreed among R. Caposella, J. Dimopoulos and S. Dimopoulos, that R. Caposella would retain control over the entire operation by the formation of Shore Line Inc., a corporation of which he would own 100% of the issued and outstanding shares of stock and which would be used to enter into the contract with Broadridge. 70. It was agreed among R. Caposella, J. Dimopoulos and S. Dimopoulos, that R. Caposella would form Shore Line Edgewood with 51% owned by R. Caposella and 49% by S. Dimopoulos to operate the two Edgewood Locations, which would be overseen by S. Dimopoulos. 71. It was agreed among R. Caposella, J. Dimopoulos and S. Dimopoulos, that R. Caposella would form Shore Line NJ with 51% owned by R. Caposella and 49% by J. Dimopoulos, to operate the Jersey City Location and which would be overseen by J. Dimopoulos with the assistance of his daughter, who did not have an ownership interest. 72. By contract dated February 22, 2011, Shore Line Inc. entered into an agreement with Broadridge premised upon the accepted Proposal. 73. Commencing March 1, 2011, Shore Line Edgewood and Shore Line NJ started to operate the cafeterias and vending machines at the Locations. 74. S. Dimopoulos was assigned to run the one of the Edgewood Locations. 75. J. Dimopoulos was assigned to run the Jersey City Location, with his daughter, Stacy, serving as cashier. 76. Despite his representations to the contrary, S. Dimopoulos was not fully committed to running the cafeteria to which he was assigned. 77. Despite his representations to the contrary, S. Dimopoulos did not fulfill his obligations in running one of the Edgewood Locations as he consistently and repeatedly arrived late, took multiple long cigarette and health club breaks. 78. Despite his representations to the contrary, S. Dimopoulos stopped working at the Edgewood Location to which he was assigned within two months after commencement. 79. Despite his representations to the contrary, J. Dimopoulos failed to properly operate the Jersey City Location. 80. Despite his representations to the contrary, J. Dimopoulos failed to perform standard maintenance of the Jersey City Location cafeteria. 81. Despite his representations to the contrary, J. Dimopoulos failed to maintain adequate food supplies at the Jersey City Location. 82. Despite his representations to the contrary, J. Dimopoulos did not maintain requisite decorum at the Jersey City Location, engaging with his daughter (who operated the cash register) in heated arguments in the cafeteria in the presence of Broadridge employees. 83. Despite his representations to the contrary, J. Dimopoulos was frequently not on site to oversee the cafeteria’s operations. 84. In May, 2011, Nancy Towner, the vice president of procurement for Broadridge was confronted by J. Dimopoulos in the hallway of the New Jersey office building from which the Jersey City Location was operated. 85. As a direct result of that confrontation, Broadridge security escorted J. Dimopoulos from the building, from which he was permanently barred. 86. Since the date of his forced removal from the New Jersey office building from which the Jersey City Location was operated, J. Dimopoulos has failed to render any services on behalf of Shore Line Inc., Shore Line Edgewood or Shore Line NJ. 87. As a direct result of the departure from the Edgewood Location and Jersey City Location by J. Dimopoulos and S. Dimopoulos, the Corporate Defendants were forced to hire two managers to replace them (the “Replacement Managers”). 88. One of the Replacement Managers is paid an annual salary of $45,000.00, the other an annual salary of $53,000.00. 89. Since the date of the formation of Shore Line Edgewood, there has been no profit generated. 90. Since the date of the formation of Shore Line Edgewood, S. Dimopoulos has enjoyed the benefit of losses as shown on K-1’s issued by that corporation. 91. Since the date of the formation of Shore Line NJ, there has been no profit generated. 92. Since the date of the formation of Shore Line NJ, J. Dimopoulos has enjoyed the benefit of losses as shown on K-1’s issued by that corporation. 93. After J. Dimopoulos was banned from the Jersey City Location he admitted that he had “withheld” for his own benefit, the deposit of not less than $3,000.00 in cash receipts from that cafeteria operation. 94. Defendants are uncertain as to whether J. Dimopoulos failed to deposit additional cash receipts from the operation of the Jersey City Location. 95. J. Dimopoulos does not have any equity in Shore Line NJ. 96. S. Dimopoulos does not have any equity in Shore Line Edgewood. 97. The actions of J. Dimopoulos as detailed herein constitute a breach of the fiduciary obligations between him and Shore Line NJ inasmuch as he failed to render services and otherwise fulfill his fiduciary obligations to Shore Line NJ. 98. The actions of S. Dimopoulos as detailed herein constitute a breach of the fiduciary obligations between him and Shore Line Edgewood inasmuch as he failed to render services and otherwise fulfill his fiduciary obligations to Shore Line Edgewood. 99. As a result of the foregoing, the Corporate Defendants have suffered damages in a sum to be determined, but believed to be not less than $10,000.00. 100. Demand upon the other shareholder of Shoreline Edgewood to seek the relief sought herein would be futile. 101. Demand upon the other shareholder of Shoreline NJ to seek the relief sought herein would be futile. 10 102. As a result of the foregoing, R. Caposella, in his derivative capacity as shareholder of Shoreline Edgewood and Shore Line NJ, should recover of J. Dimopoulos and S. Dimopoulos, judgment in the sum of not less than $10,000.00, together with interest and costs. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE AND SECOND COUNTERCLAIM 103. Defendants and counterclaim plaintiffs R. Caposella derivatively on behalf of and for the benefit of Shore Line Edgewood and Shore Line NJ repeat and reallege each and every allegation set forth in §§1-102 as if more fully and completely set forth herein. 104. Premised upon the determination by R. Caposella as president of Shore Line NJ, that Shore Line NJ was undercapitalized by $20,000.00, by check dated May 15, 2013, Caposella deposited personal funds in the sum of $10,200.00 into the operating account of Shore Line NJ. 105. Premised upon the determination by R. Caposella as president of Shore Line Edgewood, that Shore Line Edgewood was undercapitalized by $20,000.00, by check dated May 15, 2013, Caposella deposited personal funds in the sum of $10,200.00 into the operating account of Shore Line Edgewood. 106. By written demand of R. Caposella as president of Shore Line Edgewood dated May 10, 2013, Shore Line Edgewood made demand of S. Dimopoulos to remit capital in the sum of $9,800.00 for the benefit of Shore Line Edgewood (the “Edgewood Capital Call”). 107. By written demand of R. Caposella as president of Shore Line NJ dated May 10, 2013, Shore Line NJ made demand of J. Dimopoulos to remit capital in the sum of $9,800.00 for the benefit of Shore Line NJ (the “NJ Capital Call”). 108. Notwithstanding the Edgewood Capital Call, S. Dimopoulos has refused to meet the monetary demand. 11 109. Notwithstanding the NJ Capital Call, J. Dimopoulos has refused to meet the monetary demand. 110. Additional demand upon the other shareholder of Shoreline Edgewood to seek the relief sought herein would be futile. 111. Additional demand upon the other shareholder of Shoreline NJ to seek the relief sought herein would be futile. 112. As a result of the foregoing, R. Caposella, in his derivative capacity as shareholder and for the benefit of Shoreline Edgewood and Shore Line NJ, should recover from each S. Dimopoulos and J. Dimopoulos, respectively, judgment in the sum of not less than $9,800.00 each, for a total judgment of $19,600.00, together with interest and costs. WHEREFORE, Defendants request that judgment be entered follows: a) dismissing the Complaint, in its entirety, together with costs; b) on the first counterclaim, judgment in favor of Defendants, including but not limited to R. Caposella in his derivative capacity as shareholder of Shore Line Edgewood and Shore Line New Jersey, against the Plaintiffs in the sum of not less than $10,000.00 together with interest and costs; c) on the second counterclaim, judgment in favor of R. Caposella in his derivative capacity as shareholder of and for the benefit of Shore Line Edgewood and Shore Line New Jersey against the Plaintiffs S. Dimopoulos and J. Dimopoulos, respectively, each in the sum of not less than $9,800.00, for a total of $19,600.00, together with interest and costs, together with such other and further relief as this Court deems to be just, equitable and proper. 12 Dated: Scarsdale, New York May2l, 2013 HAS & GO LIEB bitTieb orneys for Defpfidants 670 White Plai 9 uite 121 Scarsdale, New Y: ork 105 83 (914) 725-2600 TO: ANDREW BRODNICK, ESQ. Attorney for Plaintiffs 126 Barker Street Mount Kisco, New York 10549 (914) 244-0060 13