Preview
INDEX NO. 651885/2010
(FILED: NEW YORK COUNTY CLERK 08/11/2011)
NYSCEF DOC. NO. 64 RECEIVED NYSCEF 08/11/2011
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK Index No. 651885/2010
ee x
JMB APPAREL DESIGNER GROUP, INC.
Plaintifé,
- against -
REPLY AFFIRMATION
ROBERT S. AROCHAS, D-NACH, LTD, and
FAB MILL, INC.,
Defendants.
feet = = X
JOSEPH H. ADAMS, being admitted to practice law in New York affirms the
following under penalty of perjury:
1 lam the attorney for plaintiff, in this action, and for the same party that is
sued as a defendant in the related action that is the subject of this action, together with
three individuals, in an action captioned Robert S. Arochas v. JMB Apparel Designer
Group, Joe Chan, Ben Choy, and Marcella Law, Index No., 650075/11. I submit this
reply to the answering affirmation of Bruce Robins, Esq., which (1 note is the predicate
of a sanctions motion being sought before this Court also.) There are two responses.
2 First, the consolidation motion is not mooted or determined by the fact
that there is a pending motion to dismiss outstanding as to the complaint in this action.
In the captioned action, Robert Arochas made claims for allegedly due profit shares
from JMB; in the second action, he expanded that claim for the payment of profits share
to the employees and the principal of JMB. Thus, there are identical claims in these two
actions, which seek payment of this profit share, not just from the corporation JMB, but
from individuals (on the basis of an alleged fiduciary duty to Arochas. Regardless of
the outcome of the motion to dismiss the complaint, the profit sharing claim is pleaded
in the captioned action, and an identical claim is pleaded, including a restatement of the
claim against JMB, in the second filed action. It thus could be that the complaint is
dismissed - which I think is highly improbable - and the irony would be realized that
Arochas, as a “at-will” could seek a profit accounting, after he loft, of JMB’s profits.
3. Second, I also offered to avoid the submission of this motion, because I
advised Arochas counsel - which is not noted in their answer - that we could moot the
motion by having them consent to consolidation, subject to the determination on the
motion to dismiss. I suggested that this would take a one-paragraph statement in the
answer and thus moot the issue. So, as a fact, both of us proposed a method of going
forward, but counsel for Arochas’ refused my offer, see Exhibit A) which was this:
Gentlemen:
If you are perplexed by this issue, I suggest that you respond by submitting an
affirmation that states that you do not object to consolidation, in the event that the JMB
complaint is not dismissed. That would take one paragraph submission, and would
save you a lot of attorneys fees and existential angst and uncertainty.
Best wishes, in the warmth of our comraderie, and mutual professional respect.
JA
4 This puts us in equal positions re reasonable attempts to dispose of this
issue. What is different is that Arochas’ counsel had a strong ulterior motive to prevent
the motion from being submitted to the Court; they did not want the Court to have an
opportunity to view contradictory pleadings, on the fiduciary duty issue, which state
exactly the opposite of what they have argued to the Court on the dismissal motion.
5 They not only refused my offer to resolve the consolidation motion by a
stipulation - or the equivalent , but they threatened me with sanctions (which is a threat
on which they made good, by a pending application to the Court) if I dared to advise
the Court of the fact that Arochas’ pleadings in the second case contradict his positions
of the dismissal motion. I think that threats of sanctions for that purpose are not
proper, i.e. the purpose to avoid disclosure of hiding contradictory verified statements
about pending issues, is improper. I was threatened explicitly and rejected the threats.
To the effect, I already advised the Court of the sanction threat (Exhibit B): it was made
by a letter from Mr. Skala, (which is copied as Exhibit C). I will not permit opposing
counsel to conceal material information by the Court by any personal intimidation.
6 The motion should be granted, as it is justified independently of the status
of the complaint because of the identical pleadings by Arochas in each action. To avoid
the motion, opposing counsel should have accepted my suggestion to consolidate, on an
alternate basis. Opposing counsel’s motivation is not avoid a ion, but to keep the
Court from becoming aware of information that con! icts their ismissal motion.
Dated: August 10, 2011
Joseph H. A
Ce INE IES IEEE EE
OE EE EE 4“e ve
Graail
py coo ge
Joseph H. Adams, Esq.
— — ————
Arochas et al adv. JMB Apparel et al
4 messages
—-. a
Bruce Robins Wed, Aug 3, 2011 at 5:40 PM
To: joelavesq@gmail.com
Cc: Mskala@fedkas.com
Dear Mr. Adams:
Per my email yesterday, attached please find a stipulation which would resolve the consolidation
issue.
Bruce Robins, Esq.
Feder Kaszovitz LLP
845 Third Avenue
New York, N.Y. 10022-6601
212-888-8200 x5412
Fax 212-888-7776
Direct fax 347-226-5472
email address brobins@fedkas.com
THIS MESSAGE IS INTENDED ONLY FOR THE INDIVIDUAL OR ENTITY TO WHOM OR WHICH IT IS
ADDRESSED, AND MAY CONTAIN INFORMATION WHICH IS CONFIDENTIAL, PROPRIETARY, AND/OR
PRIVILEGED. PLEASE DO NOT DISCUSS OR DISSEMINATE THE INFORMATION CONTAINED IN THIS
EMAIL UNLESS YOU ARE THE ADDRESSEE OR A PERSON AUTHORIZED TO DELIVER THE MESSAGE
TO THE ADDRESSEE. {F YOU HAVE RECEIVED THIS EMAIL IN ERROR, PLEASE CONTACT US AT
212-888-8200. THANK YOU FOR YOUR COOPERATION.
4 arojmbconsolstip.pdf
21K
~ a ——— ——_——.
Joseph H. Adams, Esq. Thu, Aug 4, 2011 at 7:54 AM
To: Bruce Robins
https://mail. google.com/mail/?ui=2&ik=08f70dc 195 &view=pt&q=BRobins%4 0fedkas.co... 8/10/2011
_ = Se eee ee ee eee ee agY eure
Cc: Mskala@fedkas.com
Mr. Robins;
Your stipulation is not acceptable, as | previously indicated
Joseph Adams
(Quoted text hidden}
a —— —— a
Joseph H. Adams, Esq. Thu, Aug 4, 2011 at 8:28 AM
To: Bruce Robins
Cc: Mskala@fedkas.com
Gentlemen:
\f you are perplexed by this issue, | suggest that you respond by submitting an affirmation that states that you
do not object to consolidation, in the event that the JMB complaint is not dismissed. That would take one
paragraph submission, and would save you a lot of attorneys fees and existential angst and ucertainty.
Best wishes, in the warmth of our comraderie, and mutual professional respect.
JA
[Quoted text hidden)
—— nr ee
Murray Skala Thu, Aug 4, 2041 at 12:45 PM
To: "Joseph H. Adams, Esq." , Bruce Robins
Please see letter attached.
Murray L. Skala
Feder Kaszovitz LLP
845 Third Avenue
New York, New York 10022
Telephone: 212-888-8200
Telefax: 412-888-7776
PLEASE NOTE THAT MY E-MAIL ADDRESS HAS CHANGED TO MSKALA@FEDKAS,COM
THIS MESSAGE IS INTENDED ONLY FOR THE INDIVIDUAL OR ENTITY TO WHOM OR WHICH IT IS
ADDRESSED AND MAY CONTAIN INFORMATION WHICH IS CONFIDENTIAL AND PRIVILEGED.
PLEASE DO NOT COPY OR DISSEMINATE THIS MESSAGE UNLESS YOU ARE THE ADDRESSEE (OR
THE PERSON RESPONSIBLE FOR DELIVERING THIS MESSAGE TO THE ADDRESSEE.) IF THIS
COMMUNICATION HAS BEEN SENT TO YOU IN ERROR, PLEASE CALL US AT (212)-888-8200
THANK YOU FOR YOUR COOPERATION
eee aa ~ ~ =o - a —_
From: Joseph H. Adams, Esq. [mailto:jgelavesq@amail.com)
Sent: Thursday, August 04, 2011 8:28 AM
To: Bruce Robins
Ce: Murray Skala
Subject: Re: Arochas et al adv. JMB Apparel et al
https://mail.google.com/mail/?ui=2
&ik=08f70dc1 95 &view=pt&q=BRobins%40fedkas.co... 8/10/2011
EXHIBIT B
JOSEPH H. ADAMS, ESQ., P.C
ATTORNEY & COUNSELOR
76 BURD STREET
NYACK, NEW YORK 10960
(845) 353-2320
(fax) 353-6934
jOveph@joelawcom>
nyackjoe@gmail.com
August 3, 2011 joelaw.com
Hon. Charles Ramos
Supreme Court, New York County
New York County Courthouse
60 Centre Street
New York, New York 10007
Re: JMB Apparel Designer Group, Inc. V. Arochas et.al., Index No 651885/2010
Dear Judge Ramos:
Enclosed please find a courtesy copy of the pleading in a related action captioned
as Arochas v. JMB Apparel Designer Group, Inc, et.al. , which is the subject of a motion
to consolidate with the above-referenced action, which was originally to be submitted
on July 22, 2011, but which counsel for Mr, Arochas - defendant in the first-filed action,
and plaintiff in the second - adjourned for three weeks until August 12, 2011, originally
over my objection. The complaint in the second action is essentially identical to the
counterclaims, in the first action, and therefore should consolidated; thus, the motion.
I write to request that the Court take judicial notice of the complaint in this
related action, in connection with the pending motion to dismiss the complaint. Inter
alia, in the motion to dismiss defendants claim that no fiduciary duty can exist with
regard to the parties to the action because Mr. Arochas was an at will employee, with
alleged freedoms of action or right the belie the legal possibility of fiduciary duty
The complaint in the related action contradicts this position profoundly, In the
last claim in that complaint, Mr. Arochas - through his counsel - alleges in a verified
pleading an affirmative claim based upon the existence of such a fiduciary duty
32,_As co-founders of JMB, Chan, Choy and Law as well as JMB, owed a
fiduciaryduty to Arochas to properly account for JMB’s profits, and to pay
Arochas his fair share of them (emphasis added).
Such fiduciary duties are normally reciprocal, and the allegation of such an duty
by Mr. Arochas for his own benefit contradicts his claim in the referenced action in
which the motion to dismiss is pending, that no such duty can exist as a matter of law
between himself and the other “co-founders” of JMB, because he is only a mere at-will
employee. In the companion action, Mr. Arochas alleges, not only a contract to pay,
he alleges the specific existence of transcendent fiduciary obligation for his benefit that
comes from the special relationship of the four individuals, who founded the company
His positions in his own action contradict those in the first filed action, in which
he seeks to have the complaint dismissed, in part, because no such duty could exist
I confess to filing the consolidation motion to have this fact and pleading before
the Court. That is a fairly Rube Goldberg way to get the information about Mr. Arochas
contradictory pleadings to the Court's attention. The request for judicial notice of this
pleading -- its contents, and the contradiction to Mr. Aroc! as a defendant -
is to my mind, a more direct and appropriate way to i ‘m the Cougt on this point
Thank you for your attention to this ma‘
Very truly yours,
Jose}
cc. Feder Kaszovitz, LLP
Addendum: After preparing this letter and advising ppposing counsel that it would be
sent, multiple requests have been made to withdraw consolidation motion, and an
almost equal number of threats have been made to sq@k “sanctions” for writing a letter
to the Court. These threats I ignore. The pleading copied herewith raises issues akin to
judicial estoppel, in which a party is asserting directly contradictory claims in the same
case, between the same parties, on the same issues. It is an accident of defendants’ error
in not using a supplemental CPLR 306 summons to join additional parties to this action,
that this pleading was not made in the above-referenced action. The complaint states
the same cause of action as the counterclaims in the JMB action. I have a duty to duty to
let the Court know that defense counsel, as the judicial estoppel cases say, is playing
“fast and loose” with the integrity of the Court, by moving to dismiss on grounds that
conflict with their own pleadings. Thus, I decline to react to counsel's threats.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ROBERT S. AROCHAS. index Mo 650075 /),
Plaintiff, YERIBJED COMPLAINT
v.
JMB APPAREL DESIGNER GROUP, INC.,
JOE CHAN, BEN CHOY, and MARCELLA LAW,
Defendants.
Plaintiff Robert S. Arochas (“Arochas"), by his attorneys Fedet Kaszovitz, LLP, alleges
the following as and for his complaint against defendants;
PARTIES
JURISDICTION,
AND VENUE
i Atochas is a resident of (he State af New York,
2. Upon information and belicf, defendant JMB Apperel Designer Group, Inc.
(“IMB") is. a New York corporation with its principal place of business in New York County,
3 Upon information and belief, defendant Joe Chan (“Chan") is a principal of
JMB and a resident of China.
4 Upon information and belief, Chan docs business in New York.
3. Upon information and belief, Chan trangacts business in New York,
6. ‘The couscs of action herein alleged against Chan arise from his transaction of
business in New York.
7. Upon information and belicf, defendant Ben Choy (“Choy”) is a resident of the
State of New York, County of New York.
8 Upon information und belicf, defendant Marcella Law (“Law") Is a resident of the
i
6 a # pL Papglz lz: PEGIESESHRL
291 ane W944 PSG
yb bOekG
State of New York, County of New York,
Ni FY SE. IN. JIMA
9. From in or around the spring of 2004 through May 24) 2010, Arochas was
employed by JMB.
10, Arochss agreed with JMB that, as part of hisergot for his employment,
JMB would pay Arochas a 20% share of JMB'’s annual profit during the term of his employment,
il. Defendants breached their agreement with Arochas by failing to pay him
20% of the annus! profit it camed while he was employed by it.
AS_AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS
(2. Plaintiff cepeats, reitcratcs, and realleges the allegations contained in paragraphs 1
through |) above as if fully sct forth herein.
43. Upon informution and bolief, Chay and Law are shardhoiders, officers, directors,
and employees of JMB who staried then employment, llke AtOohas, when JMB was founded,
14 Upon information and belicf, Chan holds « controlling intertat In JMB.
1s Upon information and belicf, Choy and Law were both senior executives
in JMB's employ during the term of Arochas's employment with JMB.
16. Over the course of his cmploymant, defendants ropresentcd to Arochias thar JMB
had never realized any materia! amount of profit, and therefore that he would not receive any
profit sharing,
7 Upon information and belicf, such represeniotions ware falsc when made.
18. Upon information and belief, defendants knew that such representations wore
6 4 # pibaeGeTlT® PEAGESES
PBL
Preview
INDEX NO. 651885/2010 (FILED: NEW YORK COUNTY CLERK 08/11/2011) NYSCEF DOC. NO. 64 RECEIVED NYSCEF 08/11/2011 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. 651885/2010 ee x JMB APPAREL DESIGNER GROUP, INC. Plaintifé, - against - REPLY AFFIRMATION ROBERT S. AROCHAS, D-NACH, LTD, and FAB MILL, INC., Defendants. feet = = X JOSEPH H. ADAMS, being admitted to practice law in New York affirms the following under penalty of perjury: 1 lam the attorney for plaintiff, in this action, and for the same party that is sued as a defendant in the related action that is the subject of this action, together with three individuals, in an action captioned Robert S. Arochas v. JMB Apparel Designer Group, Joe Chan, Ben Choy, and Marcella Law, Index No., 650075/11. I submit this reply to the answering affirmation of Bruce Robins, Esq., which (1 note is the predicate of a sanctions motion being sought before this Court also.) There are two responses. 2 First, the consolidation motion is not mooted or determined by the fact that there is a pending motion to dismiss outstanding as to the complaint in this action. In the captioned action, Robert Arochas made claims for allegedly due profit shares from JMB; in the second action, he expanded that claim for the payment of profits share to the employees and the principal of JMB. Thus, there are identical claims in these two actions, which seek payment of this profit share, not just from the corporation JMB, but from individuals (on the basis of an alleged fiduciary duty to Arochas. Regardless of the outcome of the motion to dismiss the complaint, the profit sharing claim is pleaded in the captioned action, and an identical claim is pleaded, including a restatement of the claim against JMB, in the second filed action. It thus could be that the complaint is dismissed - which I think is highly improbable - and the irony would be realized that Arochas, as a “at-will” could seek a profit accounting, after he loft, of JMB’s profits. 3. Second, I also offered to avoid the submission of this motion, because I advised Arochas counsel - which is not noted in their answer - that we could moot the motion by having them consent to consolidation, subject to the determination on the motion to dismiss. I suggested that this would take a one-paragraph statement in the answer and thus moot the issue. So, as a fact, both of us proposed a method of going forward, but counsel for Arochas’ refused my offer, see Exhibit A) which was this: Gentlemen: If you are perplexed by this issue, I suggest that you respond by submitting an affirmation that states that you do not object to consolidation, in the event that the JMB complaint is not dismissed. That would take one paragraph submission, and would save you a lot of attorneys fees and existential angst and uncertainty. Best wishes, in the warmth of our comraderie, and mutual professional respect. JA 4 This puts us in equal positions re reasonable attempts to dispose of this issue. What is different is that Arochas’ counsel had a strong ulterior motive to prevent the motion from being submitted to the Court; they did not want the Court to have an opportunity to view contradictory pleadings, on the fiduciary duty issue, which state exactly the opposite of what they have argued to the Court on the dismissal motion. 5 They not only refused my offer to resolve the consolidation motion by a stipulation - or the equivalent , but they threatened me with sanctions (which is a threat on which they made good, by a pending application to the Court) if I dared to advise the Court of the fact that Arochas’ pleadings in the second case contradict his positions of the dismissal motion. I think that threats of sanctions for that purpose are not proper, i.e. the purpose to avoid disclosure of hiding contradictory verified statements about pending issues, is improper. I was threatened explicitly and rejected the threats. To the effect, I already advised the Court of the sanction threat (Exhibit B): it was made by a letter from Mr. Skala, (which is copied as Exhibit C). I will not permit opposing counsel to conceal material information by the Court by any personal intimidation. 6 The motion should be granted, as it is justified independently of the status of the complaint because of the identical pleadings by Arochas in each action. To avoid the motion, opposing counsel should have accepted my suggestion to consolidate, on an alternate basis. Opposing counsel’s motivation is not avoid a ion, but to keep the Court from becoming aware of information that con! icts their ismissal motion. Dated: August 10, 2011 Joseph H. A Ce INE IES IEEE EE OE EE EE 4“e ve Graail py coo ge Joseph H. Adams, Esq. — — ———— Arochas et al adv. JMB Apparel et al 4 messages —-. a Bruce Robins Wed, Aug 3, 2011 at 5:40 PM To: joelavesq@gmail.com Cc: Mskala@fedkas.com Dear Mr. Adams: Per my email yesterday, attached please find a stipulation which would resolve the consolidation issue. Bruce Robins, Esq. Feder Kaszovitz LLP 845 Third Avenue New York, N.Y. 10022-6601 212-888-8200 x5412 Fax 212-888-7776 Direct fax 347-226-5472 email address brobins@fedkas.com THIS MESSAGE IS INTENDED ONLY FOR THE INDIVIDUAL OR ENTITY TO WHOM OR WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION WHICH IS CONFIDENTIAL, PROPRIETARY, AND/OR PRIVILEGED. PLEASE DO NOT DISCUSS OR DISSEMINATE THE INFORMATION CONTAINED IN THIS EMAIL UNLESS YOU ARE THE ADDRESSEE OR A PERSON AUTHORIZED TO DELIVER THE MESSAGE TO THE ADDRESSEE. {F YOU HAVE RECEIVED THIS EMAIL IN ERROR, PLEASE CONTACT US AT 212-888-8200. THANK YOU FOR YOUR COOPERATION. 4 arojmbconsolstip.pdf 21K ~ a ——— ——_——. Joseph H. Adams, Esq. Thu, Aug 4, 2011 at 7:54 AM To: Bruce Robins https://mail. google.com/mail/?ui=2&ik=08f70dc 195 &view=pt&q=BRobins%4 0fedkas.co... 8/10/2011 _ = Se eee ee ee eee ee agY eure Cc: Mskala@fedkas.com Mr. Robins; Your stipulation is not acceptable, as | previously indicated Joseph Adams (Quoted text hidden} a —— —— a Joseph H. Adams, Esq. Thu, Aug 4, 2011 at 8:28 AM To: Bruce Robins Cc: Mskala@fedkas.com Gentlemen: \f you are perplexed by this issue, | suggest that you respond by submitting an affirmation that states that you do not object to consolidation, in the event that the JMB complaint is not dismissed. That would take one paragraph submission, and would save you a lot of attorneys fees and existential angst and ucertainty. Best wishes, in the warmth of our comraderie, and mutual professional respect. JA [Quoted text hidden) —— nr ee Murray Skala Thu, Aug 4, 2041 at 12:45 PM To: "Joseph H. Adams, Esq." , Bruce Robins Please see letter attached. Murray L. Skala Feder Kaszovitz LLP 845 Third Avenue New York, New York 10022 Telephone: 212-888-8200 Telefax: 412-888-7776 PLEASE NOTE THAT MY E-MAIL ADDRESS HAS CHANGED TO MSKALA@FEDKAS,COM THIS MESSAGE IS INTENDED ONLY FOR THE INDIVIDUAL OR ENTITY TO WHOM OR WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION WHICH IS CONFIDENTIAL AND PRIVILEGED. PLEASE DO NOT COPY OR DISSEMINATE THIS MESSAGE UNLESS YOU ARE THE ADDRESSEE (OR THE PERSON RESPONSIBLE FOR DELIVERING THIS MESSAGE TO THE ADDRESSEE.) IF THIS COMMUNICATION HAS BEEN SENT TO YOU IN ERROR, PLEASE CALL US AT (212)-888-8200 THANK YOU FOR YOUR COOPERATION eee aa ~ ~ =o - a —_ From: Joseph H. Adams, Esq. [mailto:jgelavesq@amail.com) Sent: Thursday, August 04, 2011 8:28 AM To: Bruce Robins Ce: Murray Skala Subject: Re: Arochas et al adv. JMB Apparel et al https://mail.google.com/mail/?ui=2 &ik=08f70dc1 95 &view=pt&q=BRobins%40fedkas.co... 8/10/2011 EXHIBIT B JOSEPH H. ADAMS, ESQ., P.C ATTORNEY & COUNSELOR 76 BURD STREET NYACK, NEW YORK 10960 (845) 353-2320 (fax) 353-6934 jOveph@joelawcom> nyackjoe@gmail.com August 3, 2011 joelaw.com Hon. Charles Ramos Supreme Court, New York County New York County Courthouse 60 Centre Street New York, New York 10007 Re: JMB Apparel Designer Group, Inc. V. Arochas et.al., Index No 651885/2010 Dear Judge Ramos: Enclosed please find a courtesy copy of the pleading in a related action captioned as Arochas v. JMB Apparel Designer Group, Inc, et.al. , which is the subject of a motion to consolidate with the above-referenced action, which was originally to be submitted on July 22, 2011, but which counsel for Mr, Arochas - defendant in the first-filed action, and plaintiff in the second - adjourned for three weeks until August 12, 2011, originally over my objection. The complaint in the second action is essentially identical to the counterclaims, in the first action, and therefore should consolidated; thus, the motion. I write to request that the Court take judicial notice of the complaint in this related action, in connection with the pending motion to dismiss the complaint. Inter alia, in the motion to dismiss defendants claim that no fiduciary duty can exist with regard to the parties to the action because Mr. Arochas was an at will employee, with alleged freedoms of action or right the belie the legal possibility of fiduciary duty The complaint in the related action contradicts this position profoundly, In the last claim in that complaint, Mr. Arochas - through his counsel - alleges in a verified pleading an affirmative claim based upon the existence of such a fiduciary duty 32,_As co-founders of JMB, Chan, Choy and Law as well as JMB, owed a fiduciaryduty to Arochas to properly account for JMB’s profits, and to pay Arochas his fair share of them (emphasis added). Such fiduciary duties are normally reciprocal, and the allegation of such an duty by Mr. Arochas for his own benefit contradicts his claim in the referenced action in which the motion to dismiss is pending, that no such duty can exist as a matter of law between himself and the other “co-founders” of JMB, because he is only a mere at-will employee. In the companion action, Mr. Arochas alleges, not only a contract to pay, he alleges the specific existence of transcendent fiduciary obligation for his benefit that comes from the special relationship of the four individuals, who founded the company His positions in his own action contradict those in the first filed action, in which he seeks to have the complaint dismissed, in part, because no such duty could exist I confess to filing the consolidation motion to have this fact and pleading before the Court. That is a fairly Rube Goldberg way to get the information about Mr. Arochas contradictory pleadings to the Court's attention. The request for judicial notice of this pleading -- its contents, and the contradiction to Mr. Aroc! as a defendant - is to my mind, a more direct and appropriate way to i ‘m the Cougt on this point Thank you for your attention to this ma‘ Very truly yours, Jose} cc. Feder Kaszovitz, LLP Addendum: After preparing this letter and advising ppposing counsel that it would be sent, multiple requests have been made to withdraw consolidation motion, and an almost equal number of threats have been made to sq@k “sanctions” for writing a letter to the Court. These threats I ignore. The pleading copied herewith raises issues akin to judicial estoppel, in which a party is asserting directly contradictory claims in the same case, between the same parties, on the same issues. It is an accident of defendants’ error in not using a supplemental CPLR 306 summons to join additional parties to this action, that this pleading was not made in the above-referenced action. The complaint states the same cause of action as the counterclaims in the JMB action. I have a duty to duty to let the Court know that defense counsel, as the judicial estoppel cases say, is playing “fast and loose” with the integrity of the Court, by moving to dismiss on grounds that conflict with their own pleadings. Thus, I decline to react to counsel's threats. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ROBERT S. AROCHAS. index Mo 650075 /), Plaintiff, YERIBJED COMPLAINT v. JMB APPAREL DESIGNER GROUP, INC., JOE CHAN, BEN CHOY, and MARCELLA LAW, Defendants. Plaintiff Robert S. Arochas (“Arochas"), by his attorneys Fedet Kaszovitz, LLP, alleges the following as and for his complaint against defendants; PARTIES JURISDICTION, AND VENUE i Atochas is a resident of (he State af New York, 2. Upon information and belicf, defendant JMB Apperel Designer Group, Inc. (“IMB") is. a New York corporation with its principal place of business in New York County, 3 Upon information and belief, defendant Joe Chan (“Chan") is a principal of JMB and a resident of China. 4 Upon information and belief, Chan docs business in New York. 3. Upon information and belief, Chan trangacts business in New York, 6. ‘The couscs of action herein alleged against Chan arise from his transaction of business in New York. 7. Upon information and belicf, defendant Ben Choy (“Choy”) is a resident of the State of New York, County of New York. 8 Upon information und belicf, defendant Marcella Law (“Law") Is a resident of the i 6 a # pL Papglz lz: PEGIESESHRL 291 ane W944 PSG yb bOekG State of New York, County of New York, Ni FY SE. IN. JIMA 9. From in or around the spring of 2004 through May 24) 2010, Arochas was employed by JMB. 10, Arochss agreed with JMB that, as part of hisergot for his employment, JMB would pay Arochas a 20% share of JMB'’s annual profit during the term of his employment, il. Defendants breached their agreement with Arochas by failing to pay him 20% of the annus! profit it camed while he was employed by it. AS_AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS (2. Plaintiff cepeats, reitcratcs, and realleges the allegations contained in paragraphs 1 through |) above as if fully sct forth herein. 43. Upon informution and bolief, Chay and Law are shardhoiders, officers, directors, and employees of JMB who staried then employment, llke AtOohas, when JMB was founded, 14 Upon information and belicf, Chan holds « controlling intertat In JMB. 1s Upon information and belicf, Choy and Law were both senior executives in JMB's employ during the term of Arochas's employment with JMB. 16. Over the course of his cmploymant, defendants ropresentcd to Arochias thar JMB had never realized any materia! amount of profit, and therefore that he would not receive any profit sharing, 7 Upon information and belicf, such represeniotions ware falsc when made. 18. Upon information and belief, defendants knew that such representations wore 6 4 # pibaeGeTlT® PEAGESES PBL