Preview
FILED: KINGS COUNTY CLERK 02/07/2020 01:04 PM INDEX NO. 503139/2020
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/07/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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YOUNG S. CHUNG, individually and on behalf of :
URBAN FRESH CORP. and 11 UM FOOD CORP. : VERIFIED COMPLAINT
:
Plaintiffs, :
: Index No. _____________
-against- :
:
COLIN K. XIE, :
:
Defendant. :
:
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Plaintiffs Young S. Chung, individually and on behalf of Urban Fresh Corp. and 11 UM
Food Corp. (collectively, “Plaintiffs”), by their attorneys Wiggin and Dana LLP, as and for their
Verified Complaint against Colin K. Xie (“Defendant”), allege as follows:
NATURE OF THE ACTION
1. This is an action to protect the fundamental interests of the corporate plaintiffs
Urban Fresh Corp. (“Urban Fresh”) and 11 UM Food Corp. (“11 UM”) (collectively, the
“Companies”) and plaintiff Young S. Chung (“Mr. Chung”) from Defendant’s malfeasance.
2. Mr. Chung and Defendant are business partners and respectively each own 50%
of the issued and outstanding shares of the Companies, which are engaged in the business of
operating two grocery stores in New York City. Mr. Chung is president of the Companies, and
Defendant is secretary and treasurer.
3. Defendant has repeatedly breached fiduciary duties owed to Plaintiffs, and has
committed other wrongdoing as stated below, by, among other ways: (i) failing to pay his share
of loan payments owed by Urban Fresh, totaling $44,134.26 to date; and (ii) failing to account
for $1,465,877.41 paid from 11 UM’s business account to Defendant’s personal American
Express card bills from January to December 2018.
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4. Due to Defendant’s refusal to meet essential financial obligations and respond to
basic requests for information, Plaintiffs have no choice but to seek this Court’s intervention.
Plaintiffs accordingly seek an accounting and declaratory relief compelling Defendant to satisfy
his corporate obligations. They further seek monetary damages.
THE PARTIES
5. Plaintiff Young S. Chung (“Mr. Chung”) is an individual residing in Nassau
County, New York.
6. Plaintiff Urban Fresh Corp. (“Urban Fresh”) is an existing corporation organized
under the laws of the State of New York with a principal place of business located in Queens
County, New York.
7. Plaintiff 11 UM Food Corp. (“11 UM”) is an existing corporation organized under
the laws of the State of New York with a principal place of business located in Kings County,
New York.
8. Defendant Colin K. Xie (“Mr. Xie” or “Defendant”) is an individual residing in
Nassau County, New York.
VENUE AND JURISDICTION
9. This Court has jurisdiction, among other grounds, pursuant to CPLR §§ 301, 302,
and 503 because Plaintiff 11 UM is a resident of, and/or conducts business in, Kings County.
10. Venue is also proper, among other reasons, because Plaintiff 11 UM is a resident
of, and/or conducts business in, Kings County.
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OTHER PERTINENT BACKGROUND
A. The Companies
11. Mr. Chung and Defendant are business partners who own and operate two grocery
stores together in New York City.
12. One of the grocery stores, owned by Urban Fresh, is in Far Rockaway, New York.
13. The other grocery store is owned by 11 UM and located in Brooklyn.
14. Mr. Chung is the president of Urban Fresh and 11 UM (collectively, the
“Companies”).
15. Defendant is the secretary and treasurer of the Companies.
16. Mr. Chung and Defendant each own 50% of the issued and outstanding shares of
the Companies.
B. Defendant’s Failure to Pay His Share of Urban Fresh’s Business Loan
17. Urban Fresh Corp. borrowed $2,500,000 pursuant to a business loan agreement
with NewBank USA dated September 4, 2014 (the “Loan”).
18. Mr. Chung, Defendant, Urban Fresh, 11 UM, and Ryan Food Corp. are guarantors
of the Loan.
19. As 50% shareholders in Urban Fresh, Mr. Chung and Defendant each became
personally responsible for satisfying half of the Loan’s monthly payments, totaling $29,422.85
per month, on December 1, 2019.
20. Despite Mr. Chung’s repeated demands that Defendant pay his share of the Loan
payments ($14,711.42 per month), Defendant has simply failed to do so to date.
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21. To avoid a default, Mr. Chung has accordingly paid Defendant’s share of the
Loan payments, totaling $44,134.26 to date (the December 1, 2019, January 1, 2020, and
February 1, 2020 Loan payments).
C. Defendant’s Payment of Over $1.4 Million in
Personal Credit Card Expenses With 11 UM Funds
22. Mr. Chung has also demanded clarification over Defendant’s use of 11 UM’s
corporate funds to pay Defendant’s personal American Express bills.
23. The relevant corporate account records more specifically demonstrate that, from
January to December 2018, Defendant caused funds from 11 UM’s business account to pay for
his personal American Express card bills totaling at least $1,465,877.41.
D. Plaintiff’s Unanswered Demands for Loan Payments and Information
24. In December 2019, Mr. Chung began formally writing to Defendant to demand
Defendant’s compliance with his Loan-related obligations and information concerning
Defendant’s apparent use of 11 UM’s corporate funds for personal purposes.
25. On December 3, 2019, Mr. Chung sent Defendant a letter demanding that
Defendant deposit $14,711.42 into Urban Fresh’s business account to satisfy his 50% share of
the monthly Loan payment due on December 1, 2019 (see Ex. A hereto).
26. Mr. Chung similarly emailed Defendant on December 27, 2019 requesting half of
the January 2020 loan payment, i.e., $14,711.42, be deposited into the Urban Fresh business
account (see Ex. B hereto).
27. Mr. Chung emailed and mailed Defendant on January 14, 2020 requesting 50% of
the February 1, 2020 payment plus the two additional $14,711.42 deposits from Defendant for
his share of the past due December and January Loan payments (see Ex. C hereto) totaling
$44,134.27.
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28. On January 21, 2020, Mr. Chung also emailed and mailed Defendant requesting
information to clarify whether and to what extent Defendant’s payment of personal American
Express bills with 11 UM funds was appropriate (see Ex. D hereto). Mr. Chung accordingly
requested Defendant’s American Express statements from January to December 2018 “so that
[Mr. Chung] may review these expenses to confirm that they were bona fide business expenses
for 11 UM” (id.).
29. Defendant has failed to respond to Mr. Chung’s requests to date.
30. No demand was made by Mr. Chung to the Companies because such an effort
would be futile and unnecessary. Mr. Chung and Defendant have each been at all relevant times,
and they today remain, 50% shareholders of the Companies. Defendant is directly charged with
breaches of fiduciary duty owed to the Companies in that he misappropriated corporate funds to
his own individual benefit and otherwise failed to comply with his corporate obligations. He
cannot be expected to vote to prosecute an action against himself.
AS AND FOR A FIRST CAUSE OF ACTION
(Demand for An Accounting)
31. Plaintiffs repeat and reallege paragraphs 1 through 30 of this Verified Complaint
as if fully set forth herein.
32. As the treasurer and secretary of the Companies, Defendant owes a fiduciary
duty to Plaintiffs which requires Defendant to, among other things, render an accounting and to
otherwise provide full and complete disclosure of all pertinent facts to Plaintiffs.
33. Although no demand or refusal is required, Defendant has nevertheless
consistently refused Plaintiffs’ demands for an accounting of payments made by 11 UM to
Defendant’s personal American Express account.
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34. Plaintiffs urgently need an accounting to confirm whether Defendant has
improperly used 11 UM’s corporate funds to pay for Defendant’s personal expenses, or whether
the expenses charged to Defendant’s American Express card were proper business expenses of
11 UM.
35. Plaintiffs are accordingly entitled to a prompt accounting of expenses charged to
Defendant’s American Express bills ranging from January 1, 2018 to December 31, 2018
totaling at least $1,465,877.41.
AS AND FOR A SECOND CAUSE OF ACTION
(Declaratory Judgment)
36. Plaintiffs repeat and incorporate paragraphs 1 through 35 as if more fully set forth
herein.
37. As a borrower, Urban Fresh became obligated to satisfy its monthly payments due
on the Loan, totaling $29,422.85 per month, beginning on September 4, 2014.
38. As a 50% owner of Urban Fresh, Defendant became obligated to satisfy half of
Urban Fresh’s monthly payments due on the Loan, totaling $29,422.85 per month, beginning on
December 1, 2019 when there were insufficient funds in the business account of Urban Fresh.
39. Despite Mr. Chung’s repeated demands that Defendant pay his share of the
Loan’s month payments, totaling $14,711.42 per month, starting from December 1, 2019,
Defendant has failed to pay his share to date.
40. To avoid a default on the Loan, Mr. Chung has paid Defendant’s share of the
Loan payments, totaling $44,134.26 to date.
41. Based on Defendant’s wrongful failure to pay, the Court should enter an order
declaring that Defendant must pay his 50% share of future monthly payments due on the Loan
and reimburse Mr. Chung for all Loan payments advanced on Defendant’s behalf.
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AS AND FOR A THIRD CAUSE OF ACTION
(Breach of Fiduciary Duty)
42. Plaintiffs repeat and incorporate paragraphs 1 through 41 as if more fully set forth
herein.
43. As the treasurer and secretary of the Companies, Defendant owes a fiduciary
duty to Plaintiffs which requires Defendant to, among other things, provide full and complete
disclosure of information relevant to the Companies’ expenses, satisfy the Companies’ financial
obligations, otherwise avoid self-dealing at Plaintiffs’ expense, and avoid diverting to his own
use and benefit any of the Companies’ funds, opportunities, and profits rightfully belonging to
the Companies.
44. Defendant has nevertheless consistently refused Plaintiff’s demands for, among
other things, Defendant to pay his 50% share of the monthly payments due on Urban Fresh’s
Loan and for information concerning the payment of Defendant’s personal American Express
bills with 11 UM funds.
45. Based on Defendant’s breaches of fiduciary duty, Plaintiffs have suffered
damages in an amount to be determined at trial, plus costs, expenses, and statutory interest at a
rate of 9% per annum.
AS AND FOR A FOURTH CAUSE OF ACTION
(Conversion)
46. Plaintiffs repeat and incorporate paragraphs 1 through 45 as if more fully set forth
herein.
47. At all relevant times, Defendant maintained ownership, possessory, and property
rights to his 50% share of the $29,422.85 monthly payments due on the Loan, forcing Mr. Chung
to pay Defendant’s share of the Loan payments, totaling $44,134.26 to date.
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48. Defendant has thus wrongfully exercised dominion over property belonging to
Mr. Chung, in derogation of Mr. Chung’s rights to such property.
49. By reason of the foregoing conversion, Mr. Chung has suffered damages in an
amount totaling at least $44,134.26 to date and accruing at the rate of $14,711.42 per month, plus
costs, expenses, and statutory interest at a rate of 9% per annum.
AS AND FOR A FIFTH CAUSE OF ACTION
(Unjust Enrichment)
50. Plaintiffs repeat and incorporate paragraphs 1 through 49 as if more fully set forth
herein.
51. Defendant engaged in wrongful, unfair and inequitable conduct, as complained of
above, and have benefitted from their wrongful conduct.
52. Defendant was enriched from his wrongful and unfair conduct at Mr. Chung’s
expense.
53. It would be against equity and good conscience for Defendant to retain the benefit
from his wrongful and unfair conduct.
54. By reason of the foregoing unjust enrichment, Mr. Chung has suffered damages in
an amount totaling $44,134.26 to date and accruing at the rate of an additional $14,711.42 per
month, plus costs, expenses, and statutory interest at a rate of 9% per annum
WHEREFORE, Plaintiffs respectfully request that the Court enter judgment:
(1) Directing Defendant to promptly render an account of expenses charged to
Defendant’s American Express bills ranging from January 1, 2018 to December
31, 2018 totaling at least $1,465,877.41.
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(2) Declaring that Defendant must pay his 50% share of all future monthly payments
due on Urban Fresh’s loan with NewBank (the “Loan”) and reimburse Mr. Chung
for all Loan payments advanced on Defendant’s behalf;
(3) Against Defendant in favor of Plaintiffs for breach of fiduciary duty in an amount
to be determined at trial, plus costs, expenses, and statutory interest at a rate of
9% per annum;
(4) Against Defendant in favor of Plaintiffs for conversion in an amount totaling at
least $44,134.26 to date and accruing at the rate of $14,711.42 per month, plus
costs, expenses, and statutory interest at a rate of 9% per annum;
(5) Against Defendant in favor of Plaintiffs for unjust enrichment in an amount
totaling at least $44,134.26 to date and accruing at the rate of $14,711.42 per
month, plus costs, expenses, and statutory interest at a rate of 9% per annum; and
(6) Granting Plaintiffs such other and further relief as this Court deems just and
proper.
WIGGIN AND DANA LLP
Dated: New York, New York
February 6, 2020
By: /s/ Kenneth K. Cho
Kenneth K. Cho
Michael L. Kenny Jr.
437 Madison Avenue, 35th Floor
New York, New York 10022
(212) 551-2600
Attorneys for Plaintiffs
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VERIFICATION
State ofNew York )
ss·
)
County of / d S )
I, Young S. Chung, being duly sworn, depose and say:
1. I am the individual plaintiff in this action and the president of the corporate
plaintiffs, Urban Fresh Corp. ("Urban Fresh") and 11 UM Food Corp. ("11 UM").
2. I have read the foregoing Verified Complaint and know the contents thereof, and
the same is true to my own knowledge, except as to the matters stated to be alleged upon
information and belief, and, as to those matters, I believe them to be true.
3. The reason why this verification is made by me is that I am the president and a
50% shareholder in Urban Fresh and 11 UM, which are corporations existing and organized
under the laws of the State of New York, and I am otherwise familiar with the facts and
circumstances of this case.
Yo hung
Sworn to before me
this O of 2020
day February,
CHULYOUNG KIM
Notary Public, State of New York
No. 01KI6151172
Qualified in Nassau County
Notary Public Commissi s Aug 14, 20
28806\l\4820-7166-9683.v3
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FILED: KINGS COUNTY CLERK 02/07/2020 01:04 PM INDEX NO. 503139/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/07/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------- x YOUNG S. CHUNG, individually and on behalf of : URBAN FRESH CORP. and 11 UM FOOD CORP. : VERIFIED COMPLAINT : Plaintiffs, : : Index No. _____________ -against- : : COLIN K. XIE, : : Defendant. : : --------------------------------------------------------------------- x Plaintiffs Young S. Chung, individually and on behalf of Urban Fresh Corp. and 11 UM Food Corp. (collectively, “Plaintiffs”), by their attorneys Wiggin and Dana LLP, as and for their Verified Complaint against Colin K. Xie (“Defendant”), allege as follows: NATURE OF THE ACTION 1. This is an action to protect the fundamental interests of the corporate plaintiffs Urban Fresh Corp. (“Urban Fresh”) and 11 UM Food Corp. (“11 UM”) (collectively, the “Companies”) and plaintiff Young S. Chung (“Mr. Chung”) from Defendant’s malfeasance. 2. Mr. Chung and Defendant are business partners and respectively each own 50% of the issued and outstanding shares of the Companies, which are engaged in the business of operating two grocery stores in New York City. Mr. Chung is president of the Companies, and Defendant is secretary and treasurer. 3. Defendant has repeatedly breached fiduciary duties owed to Plaintiffs, and has committed other wrongdoing as stated below, by, among other ways: (i) failing to pay his share of loan payments owed by Urban Fresh, totaling $44,134.26 to date; and (ii) failing to account for $1,465,877.41 paid from 11 UM’s business account to Defendant’s personal American Express card bills from January to December 2018. 1 of 10 FILED: KINGS COUNTY CLERK 02/07/2020 01:04 PM INDEX NO. 503139/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/07/2020 4. Due to Defendant’s refusal to meet essential financial obligations and respond to basic requests for information, Plaintiffs have no choice but to seek this Court’s intervention. Plaintiffs accordingly seek an accounting and declaratory relief compelling Defendant to satisfy his corporate obligations. They further seek monetary damages. THE PARTIES 5. Plaintiff Young S. Chung (“Mr. Chung”) is an individual residing in Nassau County, New York. 6. Plaintiff Urban Fresh Corp. (“Urban Fresh”) is an existing corporation organized under the laws of the State of New York with a principal place of business located in Queens County, New York. 7. Plaintiff 11 UM Food Corp. (“11 UM”) is an existing corporation organized under the laws of the State of New York with a principal place of business located in Kings County, New York. 8. Defendant Colin K. Xie (“Mr. Xie” or “Defendant”) is an individual residing in Nassau County, New York. VENUE AND JURISDICTION 9. This Court has jurisdiction, among other grounds, pursuant to CPLR §§ 301, 302, and 503 because Plaintiff 11 UM is a resident of, and/or conducts business in, Kings County. 10. Venue is also proper, among other reasons, because Plaintiff 11 UM is a resident of, and/or conducts business in, Kings County. 2 2 of 10 FILED: KINGS COUNTY CLERK 02/07/2020 01:04 PM INDEX NO. 503139/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/07/2020 OTHER PERTINENT BACKGROUND A. The Companies 11. Mr. Chung and Defendant are business partners who own and operate two grocery stores together in New York City. 12. One of the grocery stores, owned by Urban Fresh, is in Far Rockaway, New York. 13. The other grocery store is owned by 11 UM and located in Brooklyn. 14. Mr. Chung is the president of Urban Fresh and 11 UM (collectively, the “Companies”). 15. Defendant is the secretary and treasurer of the Companies. 16. Mr. Chung and Defendant each own 50% of the issued and outstanding shares of the Companies. B. Defendant’s Failure to Pay His Share of Urban Fresh’s Business Loan 17. Urban Fresh Corp. borrowed $2,500,000 pursuant to a business loan agreement with NewBank USA dated September 4, 2014 (the “Loan”). 18. Mr. Chung, Defendant, Urban Fresh, 11 UM, and Ryan Food Corp. are guarantors of the Loan. 19. As 50% shareholders in Urban Fresh, Mr. Chung and Defendant each became personally responsible for satisfying half of the Loan’s monthly payments, totaling $29,422.85 per month, on December 1, 2019. 20. Despite Mr. Chung’s repeated demands that Defendant pay his share of the Loan payments ($14,711.42 per month), Defendant has simply failed to do so to date. 3 3 of 10 FILED: KINGS COUNTY CLERK 02/07/2020 01:04 PM INDEX NO. 503139/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/07/2020 21. To avoid a default, Mr. Chung has accordingly paid Defendant’s share of the Loan payments, totaling $44,134.26 to date (the December 1, 2019, January 1, 2020, and February 1, 2020 Loan payments). C. Defendant’s Payment of Over $1.4 Million in Personal Credit Card Expenses With 11 UM Funds 22. Mr. Chung has also demanded clarification over Defendant’s use of 11 UM’s corporate funds to pay Defendant’s personal American Express bills. 23. The relevant corporate account records more specifically demonstrate that, from January to December 2018, Defendant caused funds from 11 UM’s business account to pay for his personal American Express card bills totaling at least $1,465,877.41. D. Plaintiff’s Unanswered Demands for Loan Payments and Information 24. In December 2019, Mr. Chung began formally writing to Defendant to demand Defendant’s compliance with his Loan-related obligations and information concerning Defendant’s apparent use of 11 UM’s corporate funds for personal purposes. 25. On December 3, 2019, Mr. Chung sent Defendant a letter demanding that Defendant deposit $14,711.42 into Urban Fresh’s business account to satisfy his 50% share of the monthly Loan payment due on December 1, 2019 (see Ex. A hereto). 26. Mr. Chung similarly emailed Defendant on December 27, 2019 requesting half of the January 2020 loan payment, i.e., $14,711.42, be deposited into the Urban Fresh business account (see Ex. B hereto). 27. Mr. Chung emailed and mailed Defendant on January 14, 2020 requesting 50% of the February 1, 2020 payment plus the two additional $14,711.42 deposits from Defendant for his share of the past due December and January Loan payments (see Ex. C hereto) totaling $44,134.27. 4 4 of 10 FILED: KINGS COUNTY CLERK 02/07/2020 01:04 PM INDEX NO. 503139/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/07/2020 28. On January 21, 2020, Mr. Chung also emailed and mailed Defendant requesting information to clarify whether and to what extent Defendant’s payment of personal American Express bills with 11 UM funds was appropriate (see Ex. D hereto). Mr. Chung accordingly requested Defendant’s American Express statements from January to December 2018 “so that [Mr. Chung] may review these expenses to confirm that they were bona fide business expenses for 11 UM” (id.). 29. Defendant has failed to respond to Mr. Chung’s requests to date. 30. No demand was made by Mr. Chung to the Companies because such an effort would be futile and unnecessary. Mr. Chung and Defendant have each been at all relevant times, and they today remain, 50% shareholders of the Companies. Defendant is directly charged with breaches of fiduciary duty owed to the Companies in that he misappropriated corporate funds to his own individual benefit and otherwise failed to comply with his corporate obligations. He cannot be expected to vote to prosecute an action against himself. AS AND FOR A FIRST CAUSE OF ACTION (Demand for An Accounting) 31. Plaintiffs repeat and reallege paragraphs 1 through 30 of this Verified Complaint as if fully set forth herein. 32. As the treasurer and secretary of the Companies, Defendant owes a fiduciary duty to Plaintiffs which requires Defendant to, among other things, render an accounting and to otherwise provide full and complete disclosure of all pertinent facts to Plaintiffs. 33. Although no demand or refusal is required, Defendant has nevertheless consistently refused Plaintiffs’ demands for an accounting of payments made by 11 UM to Defendant’s personal American Express account. 5 5 of 10 FILED: KINGS COUNTY CLERK 02/07/2020 01:04 PM INDEX NO. 503139/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/07/2020 34. Plaintiffs urgently need an accounting to confirm whether Defendant has improperly used 11 UM’s corporate funds to pay for Defendant’s personal expenses, or whether the expenses charged to Defendant’s American Express card were proper business expenses of 11 UM. 35. Plaintiffs are accordingly entitled to a prompt accounting of expenses charged to Defendant’s American Express bills ranging from January 1, 2018 to December 31, 2018 totaling at least $1,465,877.41. AS AND FOR A SECOND CAUSE OF ACTION (Declaratory Judgment) 36. Plaintiffs repeat and incorporate paragraphs 1 through 35 as if more fully set forth herein. 37. As a borrower, Urban Fresh became obligated to satisfy its monthly payments due on the Loan, totaling $29,422.85 per month, beginning on September 4, 2014. 38. As a 50% owner of Urban Fresh, Defendant became obligated to satisfy half of Urban Fresh’s monthly payments due on the Loan, totaling $29,422.85 per month, beginning on December 1, 2019 when there were insufficient funds in the business account of Urban Fresh. 39. Despite Mr. Chung’s repeated demands that Defendant pay his share of the Loan’s month payments, totaling $14,711.42 per month, starting from December 1, 2019, Defendant has failed to pay his share to date. 40. To avoid a default on the Loan, Mr. Chung has paid Defendant’s share of the Loan payments, totaling $44,134.26 to date. 41. Based on Defendant’s wrongful failure to pay, the Court should enter an order declaring that Defendant must pay his 50% share of future monthly payments due on the Loan and reimburse Mr. Chung for all Loan payments advanced on Defendant’s behalf. 6 6 of 10 FILED: KINGS COUNTY CLERK 02/07/2020 01:04 PM INDEX NO. 503139/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/07/2020 AS AND FOR A THIRD CAUSE OF ACTION (Breach of Fiduciary Duty) 42. Plaintiffs repeat and incorporate paragraphs 1 through 41 as if more fully set forth herein. 43. As the treasurer and secretary of the Companies, Defendant owes a fiduciary duty to Plaintiffs which requires Defendant to, among other things, provide full and complete disclosure of information relevant to the Companies’ expenses, satisfy the Companies’ financial obligations, otherwise avoid self-dealing at Plaintiffs’ expense, and avoid diverting to his own use and benefit any of the Companies’ funds, opportunities, and profits rightfully belonging to the Companies. 44. Defendant has nevertheless consistently refused Plaintiff’s demands for, among other things, Defendant to pay his 50% share of the monthly payments due on Urban Fresh’s Loan and for information concerning the payment of Defendant’s personal American Express bills with 11 UM funds. 45. Based on Defendant’s breaches of fiduciary duty, Plaintiffs have suffered damages in an amount to be determined at trial, plus costs, expenses, and statutory interest at a rate of 9% per annum. AS AND FOR A FOURTH CAUSE OF ACTION (Conversion) 46. Plaintiffs repeat and incorporate paragraphs 1 through 45 as if more fully set forth herein. 47. At all relevant times, Defendant maintained ownership, possessory, and property rights to his 50% share of the $29,422.85 monthly payments due on the Loan, forcing Mr. Chung to pay Defendant’s share of the Loan payments, totaling $44,134.26 to date. 7 7 of 10 FILED: KINGS COUNTY CLERK 02/07/2020 01:04 PM INDEX NO. 503139/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/07/2020 48. Defendant has thus wrongfully exercised dominion over property belonging to Mr. Chung, in derogation of Mr. Chung’s rights to such property. 49. By reason of the foregoing conversion, Mr. Chung has suffered damages in an amount totaling at least $44,134.26 to date and accruing at the rate of $14,711.42 per month, plus costs, expenses, and statutory interest at a rate of 9% per annum. AS AND FOR A FIFTH CAUSE OF ACTION (Unjust Enrichment) 50. Plaintiffs repeat and incorporate paragraphs 1 through 49 as if more fully set forth herein. 51. Defendant engaged in wrongful, unfair and inequitable conduct, as complained of above, and have benefitted from their wrongful conduct. 52. Defendant was enriched from his wrongful and unfair conduct at Mr. Chung’s expense. 53. It would be against equity and good conscience for Defendant to retain the benefit from his wrongful and unfair conduct. 54. By reason of the foregoing unjust enrichment, Mr. Chung has suffered damages in an amount totaling $44,134.26 to date and accruing at the rate of an additional $14,711.42 per month, plus costs, expenses, and statutory interest at a rate of 9% per annum WHEREFORE, Plaintiffs respectfully request that the Court enter judgment: (1) Directing Defendant to promptly render an account of expenses charged to Defendant’s American Express bills ranging from January 1, 2018 to December 31, 2018 totaling at least $1,465,877.41. 8 8 of 10 FILED: KINGS COUNTY CLERK 02/07/2020 01:04 PM INDEX NO. 503139/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/07/2020 (2) Declaring that Defendant must pay his 50% share of all future monthly payments due on Urban Fresh’s loan with NewBank (the “Loan”) and reimburse Mr. Chung for all Loan payments advanced on Defendant’s behalf; (3) Against Defendant in favor of Plaintiffs for breach of fiduciary duty in an amount to be determined at trial, plus costs, expenses, and statutory interest at a rate of 9% per annum; (4) Against Defendant in favor of Plaintiffs for conversion in an amount totaling at least $44,134.26 to date and accruing at the rate of $14,711.42 per month, plus costs, expenses, and statutory interest at a rate of 9% per annum; (5) Against Defendant in favor of Plaintiffs for unjust enrichment in an amount totaling at least $44,134.26 to date and accruing at the rate of $14,711.42 per month, plus costs, expenses, and statutory interest at a rate of 9% per annum; and (6) Granting Plaintiffs such other and further relief as this Court deems just and proper. WIGGIN AND DANA LLP Dated: New York, New York February 6, 2020 By: /s/ Kenneth K. Cho Kenneth K. Cho Michael L. Kenny Jr. 437 Madison Avenue, 35th Floor New York, New York 10022 (212) 551-2600 Attorneys for Plaintiffs 9 9 of 10 FILED: KINGS COUNTY CLERK 02/07/2020 01:04 PM INDEX NO. 503139/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/07/2020 VERIFICATION State ofNew York ) ss· ) County of / d S ) I, Young S. Chung, being duly sworn, depose and say: 1. I am the individual plaintiff in this action and the president of the corporate plaintiffs, Urban Fresh Corp. ("Urban Fresh") and 11 UM Food Corp. ("11 UM"). 2. I have read the foregoing Verified Complaint and know the contents thereof, and the same is true to my own knowledge, except as to the matters stated to be alleged upon information and belief, and, as to those matters, I believe them to be true. 3. The reason why this verification is made by me is that I am the president and a 50% shareholder in Urban Fresh and 11 UM, which are corporations existing and organized under the laws of the State of New York, and I am otherwise familiar with the facts and circumstances of this case. Yo hung Sworn to before me this O of 2020 day February, CHULYOUNG KIM Notary Public, State of New York No. 01KI6151172 Qualified in Nassau County Notary Public Commissi s Aug 14, 20 28806\l\4820-7166-9683.v3 10 10 of 10