Preview
INDEX NO. 063193/2013
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/04/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
hep pe reer rere terete anememnnerenprennnet x Index No.
ALBERT PEREZ, individually and derivatively Date Purchased:
on behalf of TOTAL COMPUTER SOFTWARE, LLC, SUMMONS
Eisiane, Plaintiff Resides at:
-against- 189 Harrisburg Street
Bay Shore, New York 11706
VINCENT TEDESCO, TOTAL COMPUTER SYSTEMS,
LTD. d/b/a TOTAL COMPUTER GROUP, TOTAL /
COMPUTER GROUP, LLC, TOTAL COMPUTERS, LTD, The basisofvenue
and JOHN DOE CORPORATION, designated is: Plaintiff's residence
Defendants.
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED, to answer the complaint in this action and to serve a
copy of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance, on the Plaintiff's Attorney within twenty (20) days after the service of this summons,
exclusive of the date of service (or within thirty (30) days after the service is complete if this
summons is not personally delivered to you within the State of New York); and in case of your
failure to appear or answer, judgment will be taken against you by default for the relief demanded in
the complaint.
The basis of venue is the location of Plaintiffs residence.
Dated: Jericho, New York
October 2, 2013
TUNSTEAD & SCHECHTER
Attorney(s) for Plaintiff,
: Marvin Schechter, Esq.
Michael Mattia, Esq.
500 North Broadway, Suite 101
Jericho, New York 11753
(516) 822-4400TO:
Vincent Tedesco
7 Jagger Court
Melville, NY 11747
Total Computer Systems, Ltd.
d/b/a Total Computer Group
1895 Walt Whitman Road
Melville, NY 11747
Total Computer Group, LLC
1895 Walt Whitman Road
Melville, NY 11747
Total Computers, Ltd.
1895 Walt Whitman Road
Melville, NY 11747SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
--X
ALBERT PEREZ, individually and derivatively
on behalf of TOTAL COMPUTER SOFTWARE, LLC, Index No.
Plaintiff, VERIFIED COMPLAINT
-against-
VINCENT TEDESCO, TOTAL COMPUTER SYSTEMS,
LTD. d/b/a TOTAL COMPUTER GROUP, TOTAL
COMPUTER GROUP, LLC, TOTAL COMPUTERS, LTD.
and JOHN DOE CORPORATION,
Defendants.
Plaintiff Albert Perez (“Perez” or “Plaintiff’), individually and derivatively on behalf of
Total Computer Software, LLC, by his attorneys, Tunstead & Schechter, complaining of the
Defendants, alleges as follows:
The Parties
1. At all times hereinafter mentioned, the Plaintiff Al Perez was an individual and
resides at 189 Harrisburg Street, Bayshore, New York 11706.
2. Upon information and belief, at all times hereinafter mentioned, the Defendant
Vincent Tedesco (“Tedesco”) was an individual and resides at 7 Jagger Court, Melville, NY 11747.
3. At all times hereinafter mentioned, the corporate Plaintiff Total Computer Software,
LLC (“Software”) was a limited liability company of the State of New York, having offices located
at 1895 Walt Whitman Road, Melville, NY 11747.
4, At all times herein mentioned, the ownership interest in Software is allocated as
follows: Perez 42%, Tedesco 38%, and Defendant Total Computer Systems, Ltd. d/b/a Total
Computer Group 20%.5. Upon information and belief, at all times hereinafter mentioned, the Defendant Total
Computer Systems, Ltd., d/b/a Total Computer Group (“TCG”), was a domestic corporation duly
organized and incorporated in the State of New York, having offices located at 1895 Walt Whitman
Road, Melville, NY 11747. Upon information and belief, TCG is dominated and controlled by
Defendant Tedesco.
6. Upon information and belief, at all times hereinafter mentioned, the Defendant Total
Computer Group, LLC (“TCG LLC”), was a limited liability company of the State of New York,
having offices located at 1895 Walt Whitman Road, Melville, NY 11747. Upon information and
belief, TCG LLC was dominated and controlled by Defendant Tedesco.
7. Upon information and belief, at all times hereinafter mentioned, the Defendant Total
Computers, Ltd. (“TC Ltd.”) was a domestic corporation duly organized and incorporated in the
State of New York, having offices located at 1895 Walt Whitman Road, Melville, NY 11747. Upon
information and belief, TC Ltd. was dominated and controlled by Defendant Tedesco.
8. Upon information and belief, at all times hereinafter mentioned, the Defendant John
Doe Corporation (“JDC”) was domestic corporation duly organized and incorporated in the State of
New York, having office located at 1895 Walt Whitman Road, Melville, NY 11747. Upon
information and belief, JDC was dominated and controlled by Defendant Tedesco.
Nature Of The Action
9. The nature of this action is for breach of an agreement, breach of fiduciary duty,
common law fraud, fraud in the inducement, waste, accounting, injunctive relief and other causes of
actions.
10. | Defendant Tedesco, in clear abuse of his position as a managing member of
Software, has improperly and illicitly used Software and its revenue for his personal benefit and to
the detriment of Plaintiff. Tedesco’s misconduct includes, but is not limited to, (a) fraudulently
4diverting company funds, (b) shifting membership losses to Plaintiff by not distributing losses
proportionately and preferentially distributing millions of dollars of Software’s assets to himself and
businesses owned by him; (c) encumbering Software with debt by allegedly making unauthorized
“loans” to it, (d) diverting and comingling company funds, assets, and resources into other
companies owned and controlled by Tedesco and for his own individual use, (e) giving no credit to
the more than $1,582,166.99 Perez loaned to Software; (f) using Software funds to lavish gifts and
excess monies to Jane Doe and other Software employees, including an automobile for a low-level
employee; (g) fraudulently inducing Perez to sign off on Software’s sale to Tiburon; and (h)
refusing to provide Plaintiff with full access to the books and records of Software.
Demand Futility Allegations
11. It would be futile to make any demand on Tedesco or Software for the derivative
claims set forth herein because Tedesco has utilized and abused Software for years, using it as his
own personal bank. Further, it is futile to demand that the Defendants sue themselves for their own
wrongdoing. In light of the foregoing, Plaintiff is excused from making a demand for action upon
Software prior to commencing this action.
Factual Background
A. Formation of the Company, Sale of the Company, and Software’ Unpaid Debt To
Perez.
12. In or about June 2003, Perez and Tedesco entered into a limited liability company
operating agreement (the “Operating Agreement”) to form Software for the purposes of developing
and selling computer software to police departments and security firms. Perez and Tedesco agreed
that Tedesco would manage the financials of Software, and that Perez would serve as Chief
Software Architect.
13. Software operated for approximately 9 years until it was sold in June 2012 to
Tiburon, Inc. (“Tiburon”), a provider of automated public safety and security solutions. Under the
5terms of the sale, Software was to be paid $13 million as follows: $4 million at closing, $4 million
divided into three annual installments, and $5 million in the form of an earn-out.
14. In or about October 2012, Perez left his salaried position with Software.
15. In addition to Perez’s 42% equity stake in Software, Perez was also a creditor of
Software. Perez, from time to time, with the knowledge and consent of Defendants, (a) made
considerable loans, (b) deferred nearly one million dollars in salary, and (c) advanced credit to
Software. At the time Perez left his position as Software’s Chief Software Architect, Software owed
Perez the sum of $1,582,166.99 as follows:
A. Deferred Salary $962,486.00
B. Loans $40,500.00
C. Business Expenses charge to Plaintiff's Amex Card $15,541.00
D. Business Expenses charge to Plaintiff’s Discover Card $9,742.00
E. Payments made to LAN Pro Credit Line $47,500.00
F. Payment to employees for wages earned but not paid by $506,397.99
Software
Total: $1,582,166.99
16. In addition, Plaintiff had a successful software and computer professional services
company at the time Software was formed. Plaintiffs company LAN Professionals, Inc.
(“LanPro”), loaned significant resources, personnel and equipment to Sofiware in excess of
$750,000.00. However, LanPro was never paid back even though it was agreed by Defendants that
Software would do so.
B. Tedesco’s Unauthorized Loans, Distribution from Software’s Accounts, Self-Dealings,
Conversion, and Unauthorized Use of Plaintiff’s Share of the Company’s Assets
17. Prior to the sale of Software to Tiburon in June 2012, Tedesco provided Perez with
documentation, including specific e-mails and spreadsheets, indicating how much money Perez
6would receive under different “earnout” scenarios. Tedesco did this to induce Perez to consent to
the sale. Tedesco did not notify Perez of what he now claims is extensive debt crippling Software.
Tedesco had no intention of giving Perez what Tedesco had promised out of the sale. Furthermore,
some of the documentation provided by Tedesco to Perez contains false, fraudulent and fabricated
information in furtherance of Tedesco’s intent to fraudulently induce Perez to consent to the sale of
Software to Tiburon.
18. Upon information and belief, the sale of Software was completed and Tedesco
received Tiburon’s first payment of $4 million on or about June 13, 2012. Despite owning 42%
equity in Software and being owed over $1,582,166.99 in debts, Plaintiff only received a payment
of $117,227.88 for his pro-rata distribution of the $4 million payment.
19. Immediately after receiving the $117,227.88 payment, and on numerous occasions
thereafter, Perez demanded an accounting of the $4 million distribution. After several weeks of
exchanging telephone calls, e-mails and text messages, Tedesco provided a menial spreadsheet
dated June 2012 purportedly setting forth the allocation of the $4 million received from Tiburon
(the “June 2013 spreadsheet”).
20. Based on an analysis of the June 2012 spreadsheet provided to Plaintiff, Tedesco has
engaged in self-dealing by wrongfully paying himself ahead of others, diverting substantial sums of
monies to companies he owns or controls, and discharging his own personal debt with the
company’s funds. Specifically, Tedesco paid himself $1,469,251.00 for:
A. “Forgone Salary” $83,125.00
B. Unauthorized personal loans he allegedly made to Software $1,081,307.43
C. Unauthorized Payments to Tedesco’s 401K $45,856.16
D. Unauthorized payments to a company he owns for “admin” $258,962.41
Total: $1,469,251.0021, Further examination of the June 2012 spreadsheet reveals that Tedesco diverted an
additional $619,613.78 to employees of TCG and/or TCG LLC for “forgone salary”, payments to
401(k) plans, and for something vaguely described as “repay”.!
22. Upon information and belief, TCG and/or TCG LLC are Tedesco’s “personal
company” and these employees did not work for Software. Such misappropriations are an attempt
by Tedesco to misallocate expenses away from his other company onto Software. In addition, as
part of Tedesco scheme to divert funds from Software, Tedesco routinely and extensively arranged
for Software employees to perform work on company time for other Tedesco companies.
23. Upon information and belief, Defendants TCG, TCG LLC, and TC Systems
acquiesced and participated in this wrongful conduct. None of the Defendants have provided any
legitimate or legal reason why Software or Perez should be forced to bear the burden of the
Defendants’ obligations.
24. Perez never consented to the $4,000,000.00 in withdrawals and distributions taken
from the Software account. In addition, the June 2012 spreadsheet was the first time that Perez was
informed of the extent of Software’s alleged indebtedness to Tedesco, and the employees of TCG
and/or TC Systems and/or other Tedesco-controlled entities. If the alleged “personal loans” were
actually made they were made without the knowledge or consent of the Plaintiff, and were beyond
the scope of authority of Tedesco. Upon information and belief, Tedesco has utilized Software as a
personal piggy bank to fund his other corporations and himself.
25. After learning about Tedesco and the Tedesco controlled entities purported “loans”
to Software, Perez sought information and backup concerning these alleged “loans” and what they
were for; which Software and Tedesco failed to provide. Despite the numerous requests by Perez,
1 Depending on what benefitted his scheme, Tedesco would refer to “Group” employees in any number of ways.
These employees were either employees for TCG, TCG LLC, or TC Systems and/or other Tedesco-controlled
companies. Discovery in this action, including how these employees were treated for tax purposes over many years, will
shed further light on this issue.
8Defendants have willfully failed to provide the full financial records and accounting of the financial
affairs of Software. In addition, Tedesco has also willfully failed to provide basic information
concerning how the priority of the liabilities was determined, or why Tedesco selectively paid
himself more in deferred salary than paid to the Plaintiff.
26. Upon information and belief, the creation of Software’s “indebtedness” to Tedesco
and subsequent disbursements are part of an over-all scheme by Tedesco to siphon off Software
assets and to shift all of the Company’s losses to the Plaintiff.
27. Perez subsequently confronted Tedesco by e-mail and telephone regarding his
unauthorized and improper distributions to himself. In response, Tedesco continually assured Perez
that Perez’s entire $1,582,166.99 in debt would be paid. By e-mail dated October 8, 2012, Tedesco
wrote to Perez, stating: “[w]e will pay off the rest of our personal debt with the line and/or next
payments.” Yet despite these repeated promises, Perez was never paid.
C. Tiburon’s First Installment Payment, Tedesco’s Additional Unauthorized
Distributions To Himself, and Defendants Refusal to Provide Plaintiff an Accounting
and Access to the Books and Records of the Company.
28. In or about June 2013, Software received from Tiburon a partial installment payment
of at least $500,000.00 towards the first annual installment of $1,333,333.00. The remaining
balance of $833,333.00 was to be paid on August 1, 2013. The $500,000.00 and $833,333.00 are
assets of Software.
29. On or about June 14, 2013, Plaintiff received only $50,000.00 from Software in
connection with Tiburon’s $500,000.00 payment. Immediately thereafter, Plaintiff demanded a
breakdown and allocation of the $500,000.00 collected from Tiburon.
30. On or about June 21, 2013, Plaintiff received an updated spreadsheet from Software
which indicated that the remaining $450,000.00 received from Tiburon went to Tedesco’s “Total
Computer Group” for something described as “unpaid existing distributions”. Mr. Perez never
9consented to the $450,000.00 distribution to “Total Computer Group” from Software’s account, and
objected to any future disbursements to “Total Computer Group.”
31. On June 26, 2013, Plaintiffs attorneys demanded a formal accounting stating in
relevant part: “this letter hereby demands that you immediately provide a formal accounting of the
financial transactions and affairs of Software, and that you make available Software’s books and
records so that Mr. Perez may have a certified public accountant and/or similarly qualified
representative, audit the books and records.”
32. On or about July 19, 2013, Defendants’ representative sent a letter forwarding the
previously provided spreadsheet and indicating that his client intends to immediately use the bulk of
all future payments by Tiburon to repay “Total Computer Group” alleged “indebtedness”. The
letter and spreadsheet failed to account for $195,596.00 in payments.
33. On August 5, 2013, Tedesco and Perez executed an agreement to enable Steven
Linker (“Linker”), a forensic accounted retained at Perez expense, “to perform a review of all of
Software’s books and records that are reasonably necessary in order for a proper accounting to be
performed.” The agreement states further that “All books and records shall be provided in (a)
reasonable manner such that Linker can expeditiously review same, so long as reasonable prior
notice is given as to the items sought.” As part of the agreement, Tedesco agreed to place
approximately $550,000.00 of the funds received from Tiburon’s August 2013 payment in escrow
until August 26, 2013.
34. Software’s in-house accountant, Joseph Cassano (“Cassano”), failed to provide the
complete books and records necessary to perform a proper accounting, and utterly failed to
cooperate with Perez’s accountant and failed to provide the complete books and records for review.
During the three week time period allotted by Tedesco for the accounting, Cassano left for vacationand was only present for 5 days. In addition, Cassano failed and refused to even respond to the most
basic requests.
35. Basic accounting information, such as statements showing proof of the deposit of
monies received from the purported loans, cash receipts, or other documents substantiating the
existences of the purported loans were not provided. Cassano claimed that data was only kept for
three years, and then destroyed. Other key documents not provided, included, but were not limited
to: cash disbursements for payroll and business expenses; bank statements, charge card statements
and paid invoices. Almost no information was provided for the period prior 2010. Some unsigned
promissory notes were provided but there was no record of how and where the proceeds were
deposited.
36. On or about August 22, 2013, Linker, the accountant retained to perform the
accounting, issued a report stating that there was nothing to corroborate the claims that TCG,
Tedesco, and others loaned money to Software. Mr. Linker stated that there was a complete lack of
evidence with which to trace back or verify the transfer of the original proceeds of the purported
loans to Software’s books and records. Mr. Linker further stated that: “[t]he loan repayments from
the proceeds of the sale to Tiburon do not tie to the promissory notes with which we were
provided.”
37. Upon information and belief, on or about August 27, 2013, Tedesco released the
approximately $550,000.00 from escrow over Plaintiffs objection. Upon information and belief,
Tedesco paid the $550,000.00 to TCG, TCG LLC, or other Tedesco controlled entities
notwithstanding Linker’s report that there was no way to prove that TCG, Tedesco, and other
loaned money to Software. This is especially egregious because by letter dated July 19, 2013,
Tedesco represented that he would pay Perez at least $50,000.00 out of this disbursement.
1138. As of this date, Plaintiff has been denied any meaningful access to Software’s books
and records. Plaintiff cannot evaluate the propriety of Software’s transactions without further
discovery, which Software has refused to provide.
D. Future Payments by Tiburon and Plaintiff Faces Immediate Irreparable Injury
39. Upon information and belief, Software will receive at a minimum another
$2,600,000.00 from Tiburon in future installment payments. These payments are assets of
Software. Absent a restraining order and injunction, there is a very real and substantial likelihood
that Tedesco will distribute Tiburon’s future payments to himself and his personal companies in
contravention of New York Limited Liability law and to Plaintiffs detriment. This is especially true
considering Tedesco has recently stated both in writing and orally, that he does not consider
Plaintiff a “creditor” and that he intends to take the “bulk” of all future payments by Tiburon to
repay his and TCG’s alleged “indebtedness”.
40. On or about September 12, 2013, defendant Tedesco provided Plaintiff with an
additional spreadsheet purportedly showing how the Defendants anticipate disbursing the remaining
Tiburon payments. The September 2013 spreadsheet lists an additional $1,015,924 in alleged “new”
loans that were not shown on any of the previously provided spreadsheets. Similarly, the September
2013 spreadsheet contains new categories of liabilities and deductions not on any prior
spreadsheets. This was clearly designed to diminish Perez’s share of the proceeds and to enrich
Tedesco.
FIRST CAUSE OF ACTION:
BREACH OF CONTRACT
41. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1”
through “40” as if fully set forth herein.42. Plaintiff, and Defendants Tedesco and TCG entered into a valid Operating
Agreement.
43. Under the Agreement, Plaintiff has a 42% ownership interest in Software.
44. Plaintiff has performed all of the obligations of the Operating Agreement to be
performed on his part. Software was and is an intended third party beneficiary of the Operating
Agreement.
45. Defendants Tedesco and TCG have breached the Operating Agreement by, inter alia,
(a) refusing to pay Plaintiff his legally entitled 42% ownership interest in Software; (b)
misappropriating Software’s assets without Plaintiff's consent; (c) refusing to permit Plaintiff
access to Software’s books and records; (d) converting Software’s money for their own use; (e)
distributing at least $619,613.78 to employees of TCG or another Tedesco-controlled entity; (f) by
discharging personal debt with company funds; (g) by refusing to acknowledge the $1,582,166.99
Plaintiff loaned to Software, and (h) by the unauthorized diversion and comingling of company
funds, assets, and resources into other entities and ventures.
46. Defendants Tedesco and TCG have refused to acknowledge Plaintiff's membership
rights in Software. Specifically, Defendants Tedesco and TCG have refused to acknowledge: (a)
Plaintiff's right to have full access to Software’s books and records; (b) Plaintiff's right to his
proportionate share of Software’s profits and assets; (c) Plaintiff's right to disapprove the transfer of
company interest; and (d) Plaintiff's right to disapprove loans or encumbrances.
47. By reason of Defendants Tedesco and TCG’s breaches of the Operating Agreement,
Plaintiff has been damaged, both individually and derivatively on behalf of Software, in an amount
to be determined at trial, but in no event less than $5,460,000.00, plus interest, costs, and
disbursements.SECOND CAUSE OF ACTION:
BREACH OF FIDUCIARY DUTY
48. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1
through “47” as if fully set forth herein.
49. Pursuant to the Operating Agreement, at all relevant times, each of the parties owe
the highest fiduciary duties of loyalty, good faith and fair dealing to each other and the company.
50. Tedesco, in managing the finances of Software’s daily operations, owes an
independent, fiduciary duty to Plaintiff. As a fiduciary, Tedesco is required to refrain from conduct
the motive of which is his personal gain, or which is in bad faith, or which frustrates Plaintiff's right
to share in the Company’s profits.
51. Upon information and belief, Tedesco has breached his fiduciary duties to Plaintiff
and Software by engaging in bad faith, unauthorized self-dealing and other willful misconduct that
benefited himself at the expense of Software and the Plaintiff including, but not limited to: (a)
engaging in numerous self-dealing transactions, (b) causing Software to take on wholly unnecessary
and self-serving loans without authority, (c) misappropriating the assets for himself and companies
he owns or controls, (d) encumbering the company with debt, (e) failing to keep proper books and
records (f) failing to notify Plaintiff of the alleged extensive debt that Tedesco claims is crippling
the company; (g) engaging in waste and mismanagement of company assets, and (h) repeatedly
lying to Plaintiff to conceal these and his other acts of wrongdoing and gross mismanagement.
52. Likewise, TCG has also breached its fiduciary duties by aiding and abetting
Tedesco’s breaches of the Operating Agreement and by converting assets belonging to Plaintiff
and/or Software without any rights to or interest in such assets.
53. By reasons of Defendants Tedesco and TCG’s breaches of their fiduciary duties,
Plaintiff has been damaged, both individually and derivatively on behalf of Software, in an amount
14to be determined at trial, but in no event less than $5,460,000.00, plus interest, costs, and
disbursements.
THIRD CAUSE OF ACTION:
ACCOUNTING
54. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1”
through “53” as if fully set forth herein.
55. Atall times herein mentioned, Plaintiff was a member of Software.
56. Pursuant to New York Limited Liability Law and the Operating Agreement, Plaintiff
has the right to review and inspect Software’s books and records, and to have on demand a full and
complete accounting of Software’s affairs.
57. As noted above, on or about June 26, 2013, and per an August 5, 2013 agreement,
Plaintiff demanded a formal accounting as well as full access to the books and records of Software.
Despite Plaintiff's demand, Tedesco has failed and refused to provide the full financial records and
accounting of the affairs of Software or to provide access to the books and records.
58. Upon information and belief, Tedesco has wrongfully taken and converted the
financial resources of Software for his own use, to the exclusion of Plaintiff and Plaintiff's rights
under the Operating Agreement. Upon information and belief, Tedesco has destroyed relevant
documents to cover up his tracks. Without access to Software’s books and records, Plaintiff will not
be able to assess the propriety of numerous transactions or the accuracy of the Software’s books,
records and financial statements. Therefore, Plaintiff has no adequate remedy at law.
59, Defendant Tedesco has exclusive possession of Sofware’s books and records and has
provided Plaintiff with insufficient financial information concerning Software. In addition, Tedesco
refused to hold the entire proceeds from Tiburon’s August, 2013 payment in escrow pending a full
accounting. Upon information and belief, those proceeds were disbursed by Tedesco.
60. Perez did not receive any part of the August 2013 payment made by Tiburon.
1561. Accordingly, Plaintiff demands a full accounting of Software’s financial affairs from
its inception to present, under the review and supervision of an independent accountant, and
compelling Defendants to furnish Plaintiff with full and unimpeded access to Software’s books and
records for this purpose.
FOURTH CAUSE OF ACTION:
CONVERSION
62. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1”
through “61” as if fully set forth herein.
63. As set forth above, in committing multiple acts of misconduct, Defendants caused to
be transferred and converted for their own personal use and benefit monies and other assets
belonging to Software. These withdrawals and conversions by Defendants were made from the
funds and assets of Software without any accounting to Plaintiff and without authorization.
64. In addition, the Defendants have (a) wrongfully converted Plaintiffs equity interest
in Software; (b) wrongfully converted compensation that Plaintiff earned but was not paid, and (c)
wrongfully converted other amounts owed by Software to Plaintiff to which Plaintiff has a
possessory right in at least $5,450,000.00. The exact amount of the illegal misappropriations are not
known at this time because Plaintiff has been excluded from and denied his right to full access to
the books and records of Software.
65. Defendants have exercised unauthorized dominion and control over the converted
property to the exclusion of Plaintiff and Software.
66. As a consequence of the foregoing, Plaintiff, both individually and derivatively on
behalf of Sofware, has been damaged in an amount to be determined at trial but no less than
$5,460,000.00, plus punitive and special damages.
16FIFTH CAUSE OF ACTION:
FRAUD IN THE INDUCEMENT
67. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1”
through “66” as if fully set forth herein.
68. Tedesco, as day-to-day manager of Software, was obligated to report to members
regarding the financial status of Software and to act in good faith. Prior to the sale to Tiburon in
June 2012, Tedesco represented to Perez that he would receive his pro rata share of the $8 million in
cash and $5 million in earn outs received by Software in connection with that sale. Tedesco failed to
notify Perez of the alleged extensive debt that Defendants claim is crippling Software.
69. Tedesco never intended to honor, or to be bound by, the representations and
promises that he made to Perez. Upon information and belief, said representations and promises
were false when made, and Tedesco knew that said representations and promises were false.
Tedesco also remained silent when he had an obligation to disclose.
70. In furtherance of their continuing scheme to defraud Perez, Tedesco furnished
misleading spreadsheets of alleged disbursements that contain omissions, errors and false and
fraudulent statements. The false and fraudulent spreadsheets were designed for the purpose of
convincing Perez to acquiesce to the Tiburon Sale.
71. Tedesco made the. false representations with the intent to deceive Perez and to induce
Perez to act in reliance on the false representations. Perez reasonably relied upon the aforesaid
misrepresentations, promises and material omissions, and has suffered a substantial loss, damage,
injury and detriment as a result thereof.
72. Perez has been defrauded and victimized by Defendants. As a consequence of
Defendants fraud, Perez, both individually and derivatively on behalf of Software, has been
damaged in an amount to be determined at trial but no less than $5,460,000.00, plus punitive and
special damages in an amount not less than $10,000,000.00.
17SIXTH CAUSE OF ACTION:
COMMON LAW FRAUD
73. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1”
through “72” as if fully set forth herein.
74. Defendants, Tedesco and TCG did not act honestly with respect to the affairs of
Software. Tedesco, with the complicity of TCG, acted fraudulently and engaged in self-dealings.
75. From 2003 to present, Tedesco and TCG did improperly, knowingly and fraudulently
create and contrive false loans and improperly misrepresented the assets and liabilities of Software
solely for Tedesco and TCG’s benefit.
76. In furtherance of this scheme, Tedesco, with the complicity of TCG, provided false
financial statements to Plaintiff. Tedesco’s intentional misrepresentations were designed to induce
Perez not to act to protect his rights in Software. Defendants Tedesco and TCG knew these
statements to be false.
77. In addition, Tedesco, with the complicity of TCG, knowingly made false promises to
Perez regarding the intent and ability of Software to pay Perez for his loans and deferred salary, and
to repay LanPro for use of its resources. Tedesco never intended to keep his promises which were
designed to induce Perez and LanPro to continue loaning money and resources to Software, and for
Perez to continue to defer his salary.
78. Perez justifiably relied upon the representation of Tedesco in refraining from taking
action to protect his rights and to continue to give time, money and resources to Software. In
addition, by reason of Tedesco and TCG’s fraudulent transaction and accounting the assets of
Software have been and are continuing to be depleted.
79. In addition, the Defendants have heretofore conspired to intimidate the Plaintiff into
believing that Software is in dire financial straits for the purpose of convincing Plaintiff to agree to
18the repayment of unauthorized “loans” allegedly made by Defendants, and to assent to the Tiburon
sale.
80. | As a consequence of Defendants fraud, Plaintiff, both individually and derivatively
on behalf of Software, has been damaged in an amount to be determined at trial but no less than
$5,460,000.00, plus punitive and special damages in an amount not less than $10,000,000.00.
SEVENTH CAUSE OF ACTION:
WASTE
81. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1
through “80” as if fully set forth herein.
82. As set forth above, Defendants Tedesco and TCG owed to Software the duties of
loyalty, good faith and fair dealing and the obligation to refrain from self-dealing and the waste of
the Software’s assets. As set forth above, in committing multiple acts of misconduct, Defendants
Tedesco and TCG willfully engaged in self-dealing and permitted the waste of corporate assets for
their own personal and corporate benefit and to the detriment of Software.
83. Asa direct, foreseeable and proximate result of this self-dealing and corporate waste,
Software has suffered actual injury.
84. Plaintiffs, on behalf of the Software, is entitled to compensatory damages for
Defendants Tedesco and TCG’s self-dealing and waste in an amount to be determined at trial, but
which is believed to be not less than $5,460,000.00.
85. The above-described actions of Defendant Tedesco and TCG were willful and
wanton and entitle Plaintiff, on behalf of Software, to recover punitive damages in an amount to be
determined at trial, but not less than $10,000,000.00.
19EIGHTH CAUSE OF ACTION:
UNJUST ENRICHMENT
86. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1”
through “85” as if fully set forth herein.
87. Defendants’ unlawful conduct set forth above has inequitably conferred a financial
benefit upon Defendants to the detriment of Software.
88. Asa direct result of Defendants' inequitable conduct, Defendants have been unjustly
enriched at the expense of Software.
89. In addition, Defendants have received assets and monies belonging to Plaintiff. Said
Defendants did not provide Plaintiff with consideration for their receipt of said assets. If Defendants
are allowed to keep said assets, they would be unjustly enriched at Plaintiff's expense.
90. As a consequence of the foregoing, Plaintiff, both individually and derivatively on
behalf of the company, has been damaged in an amount to be determined at trial but no less than
$5,460,000.00.
NINTH CAUSE OF ACTION:
PRELIMINARY INJUNCTIVE RELIEF
91. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1”
through “90” as if fully set forth herein.
92. As set forth above, there have been numerous improper transfers of Software’s
assets. Plaintiff has and will continue to be irreparably damaged and injured by the continuance of
Defendants acts as described above and, unless and until Defendants are restrained, Plaintiff has and
will continue to suffer irreparable injury and harm.
93. Given that additional distributions from Tiburon are forthcoming under the sale
agreement, time is of the essence. Plaintiff will have no recourse after Software’s assets are
distributed, spent, and/or hidden by Defendants. Insofar as Tedesco has used Software as a personal
20piggybank to divert assets, there is a substantial likelihood that Plaintiff's financial interest in
Software is in serious and immediate danger of being liquidated or otherwise misappropriated by
Tedesco.
94. Defendant Tedesco has indicated that he intends to use the “bulk” of all future
payments by Tiburon to “repay” Tedesco and TCG and/or TCG LLC’s purported “indebtedness”.
Such liquidation or misappropriation of Plaintiff's financial interest in Software unquestionably will
cause substantial and irreparable harm to Plaintiff and Software. Defendant Tedesco has refused to
agree to hold the Tiburon sales proceeds in escrow pending a resolution of this matter or a full and
complete accounting. Plaintiff has no adequate remedy at law.
95. Accordingly, Plaintiff, both individually and derivatively on behalf of Software,
requests that this Court issue an injunctive order: (1) enjoining Defendants from dispersing and/or
otherwise transferring assets or monies of Software without prior court approval; (2) Prohibiting
Defendants from encumbering or alienating any assets of Software; (3) directing that Tedesco
provide Plaintiff with a full accounting of the affairs of Software, and compelling Defendants to
furnish Plaintiffs with full and unimpeded access to Software’s books and records; and (4) requiring
Defendants to establish an escrow account into which all monies received from Tiburon will be
deposited until such time as an accounting and audit of the books and until the dispute between the
parties to this action is resolved.
TENTH CAUSE OF ACTION:
VIOLATION OF NEW YORK LIMITED LIABLITY COMPANY LAW AND NEW YORK
PARTNERSHIP LAW
«>
96. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs
through “95” as if fully set forth herein.
2197. Pursuant to the New York Limited Liability Company Law §§504 and 704 in
conjunction with New York Partnership Law §121-604 and related sections, Plaintiff was statutorily
entitled to a “Fair value of his interest”.
98. Defendant Tedesco, by his knowing frauds and intentional breaches as detailed
above, unlawfully deprived Plaintiff of his statutorily provided entitlements, for the sole purpose of
benefitting Tedesco at Plaintiff's expense.
99. In depriving Plaintiff, defendant Tedesco acted in contumacious disregard of his
statutory and civil obligations such that Tedesco should be compelled to pay exemplary damages to
Plaintiff.
100. As a direct result of Tedesco statutory violations, Plaintiff has been damaged in an
amount not less than $5,460,000.00 and is entitled to recover that amount plus statutory interest and
costs, plus punitive damages in amount to be determined at trial but not less than three times actual
damages.
ELEVENTH CAUSE OF ACTION:
Appointment Of A Receiver
101. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1
through “98” as if fully set forth herein.
102. As a result of Defendants’ wrongful conduct as set forth above, there is a clear
danger that if future installment payments are made to Defendants, that Plaintiffs interest to such
funds will be lost, liquidated, or misappropriated, depriving Plaintiff of his right to take immediate
possession of such funds.
103. As a party having interest in property that is subject to this action, namely the
original and installment payments by Tiburon, Plaintiff is entitled to the appointment of a temporary
receiver pursuant to CPLR 6401 to collect the proceeds from Tiburon pending the outcome of this
action. The appointment of a receiver or a trustee to manage future payments by Tiburon is the only
22way to effectively preserve Plaintiffs interest during the course of the dissolution proceeding. As
such, an Order should be entered appointing a receiver.
WHEREFORE, Plaintiff, both individually and derivatively on behalf of Software, demands
judgment as follows:
A.
On the First Cause of Action, awarding damages in an amount to be determined at
trial, but in any event not less than $5,460,000.00 plus interest, plus the cost of this
suit including disbursements;
On the Second Cause of Action, awarding damages in an amount to be determined
at trial, but in any event not less than $5,460,000.00 plus interest, plus the cost of
this suit including disbursements;
. On the Third Cause of Action, issuing an Order requiring a full accounting of all
assets of the Company under the review and supervision of an independent
accountant, and compelling Defendants to furnish Plaintiffs with full and
unimpeded access to Software’s books and records;
On the Fourth Cause of Action, awarding damages in an amount to be determined at
trial, but in any event not less than $5,460,000.00 plus interest, plus $10,000,000.00
in punitive and special damages, plus the cost of this suit including disbursements;
On the Fifth Cause of Action, awarding damages in an amount to be determined at
trial, but in any event not less than $5,460,000.00 plus interest, plus $10,000,000.00
in punitive and special damages, plus the cost of this suit including disbursements;
On the Sixth Cause of Action, awarding damages in an amount to be determined at
trial, but in any event not less than $5,460,000.00 plus interest, plus $10,000,000.00
in punitive and special damages, plus the cost of this suit including disbursements;
On the Seventh Cause of Action, awarding damages in an amount to be determined
at trial, but in any event not less than $5,460,000.00 plus interest, plus
$10,000,000.00 in punitive and special damages, plus the cost of this suit including
disbursements;
On the Eighth Cause of Action, awarding damages in an amount to be determined at
trial, but in any event not less than $5,460,000.00 plus interest, plus the cost of this
suit including disbursements;
On the Ninth Cause of Action, granting temporary and permanent injunctive relief:
(1) enjoining Defendants from dispersing and/or otherwise transferring assets or
monies of Software without prior court approval; (2) Prohibiting Defendants from
encumbering or alienating any assets of Software; (3) directing that Tedesco
provide Plaintiff with an accounting of the affairs of Software, and compelling
23Defendants to furnish Plaintiffs with full and unimpeded access to Software’s books
and records; and (4) require defendants to establish an escrow account into which
all monies received from Tiburon would be deposited until such time as an
accounting and audit of the books and until the dispute between the parties to this
action is resolved.
J. On the Tenth Cause of Action, awarding damages in an amount to be determined at
trial, but in any event not less than $5,460,000.00, plus statutory interest and costs,
plus exemplary damages in amount to be determined at trial but not less than three
times actual damages;
K. On the Eleventh Cause of Action, the appointment of a temporary receiver pursuant
to CPLR 6401 to collect the proceeds from Tiburon pending the outcome of this
action.
L. Together with interest and such other, further and different relief as the Court deems
proper in the premises, including the costs and disbursements of this action.
Dated: Jericho, New York
October 2, 2013
TUNSTEAD & SCHECHTER
Attorneys for Plaintiff
~ By: Marvin Schechter, Esq.
Michael Mattia Esq.
500 North Broadway, Ste. 101
Jericho, New York 11753
(516) 822-4400
24VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF NASSAU )
ALBERT PEREZ, being duly swom, deposes and says:
Tam the named Plaintiff in this action, both individually and derivatively on behalf of Total
Computer Software, LLC. I have read the foregoing Verified Complaint and know the contents
thereof and that the same are true to my own knowledge, except as to matters stated to be on
information and belief, and as to those matters I believe them to be true.
Ze fre,
ALBERT PEREZ,
Sworn to before me this
~ Day of October, 2013
JA %
Qualified in Suffolk County
Commission Expires July 26, 2014
25INDEX NO.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
ALBERT PEREZ, individually and derivatively
on behalf of TOTAL COMPUTER SOFTWARE, LLC,
Plaintiff,
-against-
VINCENT TEDESCO, TOTAL COMPUTER SYSTEMS, LTD. d/b/a
TOTAL COMPUTER GROUP, TOTAL COMPUTER
GROUP, LLC, TOTAL COMPUTER SOLUTIONS,
LLC, TOTAL COMPUTERS, LTD. and JOHN DOE CORPORATION,
Defendants.
SUMMONS AND VERIFIED COMPLAINT
TUNSTEAD & SCHECHTER
Attorneys for Plaintiff
500 North Broadway, Suite 101
Jericho, New York 11753
(516) 822-4400
Signature/Certification (Rule 130-1.1-a)
The undersigned, an attorney at law duly licensed to practice law in the State of New York, certifies
that, to the best of my knowledge, information and belief, formed after an inquiry reasonable under
the circumstances, the presentation of the paper(s) or contention(s) annexed hereto are not frivolous
as defined in subsection (s) of section 130-1.1.
By: Marvin Schechter
Michael Mattia
26
Preview
INDEX NO. 063193/2013 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/04/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK hep pe reer rere terete anememnnerenprennnet x Index No. ALBERT PEREZ, individually and derivatively Date Purchased: on behalf of TOTAL COMPUTER SOFTWARE, LLC, SUMMONS Eisiane, Plaintiff Resides at: -against- 189 Harrisburg Street Bay Shore, New York 11706 VINCENT TEDESCO, TOTAL COMPUTER SYSTEMS, LTD. d/b/a TOTAL COMPUTER GROUP, TOTAL / COMPUTER GROUP, LLC, TOTAL COMPUTERS, LTD, The basisofvenue and JOHN DOE CORPORATION, designated is: Plaintiff's residence Defendants. TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED, to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attorney within twenty (20) days after the service of this summons, exclusive of the date of service (or within thirty (30) days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. The basis of venue is the location of Plaintiffs residence. Dated: Jericho, New York October 2, 2013 TUNSTEAD & SCHECHTER Attorney(s) for Plaintiff, : Marvin Schechter, Esq. Michael Mattia, Esq. 500 North Broadway, Suite 101 Jericho, New York 11753 (516) 822-4400TO: Vincent Tedesco 7 Jagger Court Melville, NY 11747 Total Computer Systems, Ltd. d/b/a Total Computer Group 1895 Walt Whitman Road Melville, NY 11747 Total Computer Group, LLC 1895 Walt Whitman Road Melville, NY 11747 Total Computers, Ltd. 1895 Walt Whitman Road Melville, NY 11747SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --X ALBERT PEREZ, individually and derivatively on behalf of TOTAL COMPUTER SOFTWARE, LLC, Index No. Plaintiff, VERIFIED COMPLAINT -against- VINCENT TEDESCO, TOTAL COMPUTER SYSTEMS, LTD. d/b/a TOTAL COMPUTER GROUP, TOTAL COMPUTER GROUP, LLC, TOTAL COMPUTERS, LTD. and JOHN DOE CORPORATION, Defendants. Plaintiff Albert Perez (“Perez” or “Plaintiff’), individually and derivatively on behalf of Total Computer Software, LLC, by his attorneys, Tunstead & Schechter, complaining of the Defendants, alleges as follows: The Parties 1. At all times hereinafter mentioned, the Plaintiff Al Perez was an individual and resides at 189 Harrisburg Street, Bayshore, New York 11706. 2. Upon information and belief, at all times hereinafter mentioned, the Defendant Vincent Tedesco (“Tedesco”) was an individual and resides at 7 Jagger Court, Melville, NY 11747. 3. At all times hereinafter mentioned, the corporate Plaintiff Total Computer Software, LLC (“Software”) was a limited liability company of the State of New York, having offices located at 1895 Walt Whitman Road, Melville, NY 11747. 4, At all times herein mentioned, the ownership interest in Software is allocated as follows: Perez 42%, Tedesco 38%, and Defendant Total Computer Systems, Ltd. d/b/a Total Computer Group 20%.5. Upon information and belief, at all times hereinafter mentioned, the Defendant Total Computer Systems, Ltd., d/b/a Total Computer Group (“TCG”), was a domestic corporation duly organized and incorporated in the State of New York, having offices located at 1895 Walt Whitman Road, Melville, NY 11747. Upon information and belief, TCG is dominated and controlled by Defendant Tedesco. 6. Upon information and belief, at all times hereinafter mentioned, the Defendant Total Computer Group, LLC (“TCG LLC”), was a limited liability company of the State of New York, having offices located at 1895 Walt Whitman Road, Melville, NY 11747. Upon information and belief, TCG LLC was dominated and controlled by Defendant Tedesco. 7. Upon information and belief, at all times hereinafter mentioned, the Defendant Total Computers, Ltd. (“TC Ltd.”) was a domestic corporation duly organized and incorporated in the State of New York, having offices located at 1895 Walt Whitman Road, Melville, NY 11747. Upon information and belief, TC Ltd. was dominated and controlled by Defendant Tedesco. 8. Upon information and belief, at all times hereinafter mentioned, the Defendant John Doe Corporation (“JDC”) was domestic corporation duly organized and incorporated in the State of New York, having office located at 1895 Walt Whitman Road, Melville, NY 11747. Upon information and belief, JDC was dominated and controlled by Defendant Tedesco. Nature Of The Action 9. The nature of this action is for breach of an agreement, breach of fiduciary duty, common law fraud, fraud in the inducement, waste, accounting, injunctive relief and other causes of actions. 10. | Defendant Tedesco, in clear abuse of his position as a managing member of Software, has improperly and illicitly used Software and its revenue for his personal benefit and to the detriment of Plaintiff. Tedesco’s misconduct includes, but is not limited to, (a) fraudulently 4diverting company funds, (b) shifting membership losses to Plaintiff by not distributing losses proportionately and preferentially distributing millions of dollars of Software’s assets to himself and businesses owned by him; (c) encumbering Software with debt by allegedly making unauthorized “loans” to it, (d) diverting and comingling company funds, assets, and resources into other companies owned and controlled by Tedesco and for his own individual use, (e) giving no credit to the more than $1,582,166.99 Perez loaned to Software; (f) using Software funds to lavish gifts and excess monies to Jane Doe and other Software employees, including an automobile for a low-level employee; (g) fraudulently inducing Perez to sign off on Software’s sale to Tiburon; and (h) refusing to provide Plaintiff with full access to the books and records of Software. Demand Futility Allegations 11. It would be futile to make any demand on Tedesco or Software for the derivative claims set forth herein because Tedesco has utilized and abused Software for years, using it as his own personal bank. Further, it is futile to demand that the Defendants sue themselves for their own wrongdoing. In light of the foregoing, Plaintiff is excused from making a demand for action upon Software prior to commencing this action. Factual Background A. Formation of the Company, Sale of the Company, and Software’ Unpaid Debt To Perez. 12. In or about June 2003, Perez and Tedesco entered into a limited liability company operating agreement (the “Operating Agreement”) to form Software for the purposes of developing and selling computer software to police departments and security firms. Perez and Tedesco agreed that Tedesco would manage the financials of Software, and that Perez would serve as Chief Software Architect. 13. Software operated for approximately 9 years until it was sold in June 2012 to Tiburon, Inc. (“Tiburon”), a provider of automated public safety and security solutions. Under the 5terms of the sale, Software was to be paid $13 million as follows: $4 million at closing, $4 million divided into three annual installments, and $5 million in the form of an earn-out. 14. In or about October 2012, Perez left his salaried position with Software. 15. In addition to Perez’s 42% equity stake in Software, Perez was also a creditor of Software. Perez, from time to time, with the knowledge and consent of Defendants, (a) made considerable loans, (b) deferred nearly one million dollars in salary, and (c) advanced credit to Software. At the time Perez left his position as Software’s Chief Software Architect, Software owed Perez the sum of $1,582,166.99 as follows: A. Deferred Salary $962,486.00 B. Loans $40,500.00 C. Business Expenses charge to Plaintiff's Amex Card $15,541.00 D. Business Expenses charge to Plaintiff’s Discover Card $9,742.00 E. Payments made to LAN Pro Credit Line $47,500.00 F. Payment to employees for wages earned but not paid by $506,397.99 Software Total: $1,582,166.99 16. In addition, Plaintiff had a successful software and computer professional services company at the time Software was formed. Plaintiffs company LAN Professionals, Inc. (“LanPro”), loaned significant resources, personnel and equipment to Sofiware in excess of $750,000.00. However, LanPro was never paid back even though it was agreed by Defendants that Software would do so. B. Tedesco’s Unauthorized Loans, Distribution from Software’s Accounts, Self-Dealings, Conversion, and Unauthorized Use of Plaintiff’s Share of the Company’s Assets 17. Prior to the sale of Software to Tiburon in June 2012, Tedesco provided Perez with documentation, including specific e-mails and spreadsheets, indicating how much money Perez 6would receive under different “earnout” scenarios. Tedesco did this to induce Perez to consent to the sale. Tedesco did not notify Perez of what he now claims is extensive debt crippling Software. Tedesco had no intention of giving Perez what Tedesco had promised out of the sale. Furthermore, some of the documentation provided by Tedesco to Perez contains false, fraudulent and fabricated information in furtherance of Tedesco’s intent to fraudulently induce Perez to consent to the sale of Software to Tiburon. 18. Upon information and belief, the sale of Software was completed and Tedesco received Tiburon’s first payment of $4 million on or about June 13, 2012. Despite owning 42% equity in Software and being owed over $1,582,166.99 in debts, Plaintiff only received a payment of $117,227.88 for his pro-rata distribution of the $4 million payment. 19. Immediately after receiving the $117,227.88 payment, and on numerous occasions thereafter, Perez demanded an accounting of the $4 million distribution. After several weeks of exchanging telephone calls, e-mails and text messages, Tedesco provided a menial spreadsheet dated June 2012 purportedly setting forth the allocation of the $4 million received from Tiburon (the “June 2013 spreadsheet”). 20. Based on an analysis of the June 2012 spreadsheet provided to Plaintiff, Tedesco has engaged in self-dealing by wrongfully paying himself ahead of others, diverting substantial sums of monies to companies he owns or controls, and discharging his own personal debt with the company’s funds. Specifically, Tedesco paid himself $1,469,251.00 for: A. “Forgone Salary” $83,125.00 B. Unauthorized personal loans he allegedly made to Software $1,081,307.43 C. Unauthorized Payments to Tedesco’s 401K $45,856.16 D. Unauthorized payments to a company he owns for “admin” $258,962.41 Total: $1,469,251.0021, Further examination of the June 2012 spreadsheet reveals that Tedesco diverted an additional $619,613.78 to employees of TCG and/or TCG LLC for “forgone salary”, payments to 401(k) plans, and for something vaguely described as “repay”.! 22. Upon information and belief, TCG and/or TCG LLC are Tedesco’s “personal company” and these employees did not work for Software. Such misappropriations are an attempt by Tedesco to misallocate expenses away from his other company onto Software. In addition, as part of Tedesco scheme to divert funds from Software, Tedesco routinely and extensively arranged for Software employees to perform work on company time for other Tedesco companies. 23. Upon information and belief, Defendants TCG, TCG LLC, and TC Systems acquiesced and participated in this wrongful conduct. None of the Defendants have provided any legitimate or legal reason why Software or Perez should be forced to bear the burden of the Defendants’ obligations. 24. Perez never consented to the $4,000,000.00 in withdrawals and distributions taken from the Software account. In addition, the June 2012 spreadsheet was the first time that Perez was informed of the extent of Software’s alleged indebtedness to Tedesco, and the employees of TCG and/or TC Systems and/or other Tedesco-controlled entities. If the alleged “personal loans” were actually made they were made without the knowledge or consent of the Plaintiff, and were beyond the scope of authority of Tedesco. Upon information and belief, Tedesco has utilized Software as a personal piggy bank to fund his other corporations and himself. 25. After learning about Tedesco and the Tedesco controlled entities purported “loans” to Software, Perez sought information and backup concerning these alleged “loans” and what they were for; which Software and Tedesco failed to provide. Despite the numerous requests by Perez, 1 Depending on what benefitted his scheme, Tedesco would refer to “Group” employees in any number of ways. These employees were either employees for TCG, TCG LLC, or TC Systems and/or other Tedesco-controlled companies. Discovery in this action, including how these employees were treated for tax purposes over many years, will shed further light on this issue. 8Defendants have willfully failed to provide the full financial records and accounting of the financial affairs of Software. In addition, Tedesco has also willfully failed to provide basic information concerning how the priority of the liabilities was determined, or why Tedesco selectively paid himself more in deferred salary than paid to the Plaintiff. 26. Upon information and belief, the creation of Software’s “indebtedness” to Tedesco and subsequent disbursements are part of an over-all scheme by Tedesco to siphon off Software assets and to shift all of the Company’s losses to the Plaintiff. 27. Perez subsequently confronted Tedesco by e-mail and telephone regarding his unauthorized and improper distributions to himself. In response, Tedesco continually assured Perez that Perez’s entire $1,582,166.99 in debt would be paid. By e-mail dated October 8, 2012, Tedesco wrote to Perez, stating: “[w]e will pay off the rest of our personal debt with the line and/or next payments.” Yet despite these repeated promises, Perez was never paid. C. Tiburon’s First Installment Payment, Tedesco’s Additional Unauthorized Distributions To Himself, and Defendants Refusal to Provide Plaintiff an Accounting and Access to the Books and Records of the Company. 28. In or about June 2013, Software received from Tiburon a partial installment payment of at least $500,000.00 towards the first annual installment of $1,333,333.00. The remaining balance of $833,333.00 was to be paid on August 1, 2013. The $500,000.00 and $833,333.00 are assets of Software. 29. On or about June 14, 2013, Plaintiff received only $50,000.00 from Software in connection with Tiburon’s $500,000.00 payment. Immediately thereafter, Plaintiff demanded a breakdown and allocation of the $500,000.00 collected from Tiburon. 30. On or about June 21, 2013, Plaintiff received an updated spreadsheet from Software which indicated that the remaining $450,000.00 received from Tiburon went to Tedesco’s “Total Computer Group” for something described as “unpaid existing distributions”. Mr. Perez never 9consented to the $450,000.00 distribution to “Total Computer Group” from Software’s account, and objected to any future disbursements to “Total Computer Group.” 31. On June 26, 2013, Plaintiffs attorneys demanded a formal accounting stating in relevant part: “this letter hereby demands that you immediately provide a formal accounting of the financial transactions and affairs of Software, and that you make available Software’s books and records so that Mr. Perez may have a certified public accountant and/or similarly qualified representative, audit the books and records.” 32. On or about July 19, 2013, Defendants’ representative sent a letter forwarding the previously provided spreadsheet and indicating that his client intends to immediately use the bulk of all future payments by Tiburon to repay “Total Computer Group” alleged “indebtedness”. The letter and spreadsheet failed to account for $195,596.00 in payments. 33. On August 5, 2013, Tedesco and Perez executed an agreement to enable Steven Linker (“Linker”), a forensic accounted retained at Perez expense, “to perform a review of all of Software’s books and records that are reasonably necessary in order for a proper accounting to be performed.” The agreement states further that “All books and records shall be provided in (a) reasonable manner such that Linker can expeditiously review same, so long as reasonable prior notice is given as to the items sought.” As part of the agreement, Tedesco agreed to place approximately $550,000.00 of the funds received from Tiburon’s August 2013 payment in escrow until August 26, 2013. 34. Software’s in-house accountant, Joseph Cassano (“Cassano”), failed to provide the complete books and records necessary to perform a proper accounting, and utterly failed to cooperate with Perez’s accountant and failed to provide the complete books and records for review. During the three week time period allotted by Tedesco for the accounting, Cassano left for vacationand was only present for 5 days. In addition, Cassano failed and refused to even respond to the most basic requests. 35. Basic accounting information, such as statements showing proof of the deposit of monies received from the purported loans, cash receipts, or other documents substantiating the existences of the purported loans were not provided. Cassano claimed that data was only kept for three years, and then destroyed. Other key documents not provided, included, but were not limited to: cash disbursements for payroll and business expenses; bank statements, charge card statements and paid invoices. Almost no information was provided for the period prior 2010. Some unsigned promissory notes were provided but there was no record of how and where the proceeds were deposited. 36. On or about August 22, 2013, Linker, the accountant retained to perform the accounting, issued a report stating that there was nothing to corroborate the claims that TCG, Tedesco, and others loaned money to Software. Mr. Linker stated that there was a complete lack of evidence with which to trace back or verify the transfer of the original proceeds of the purported loans to Software’s books and records. Mr. Linker further stated that: “[t]he loan repayments from the proceeds of the sale to Tiburon do not tie to the promissory notes with which we were provided.” 37. Upon information and belief, on or about August 27, 2013, Tedesco released the approximately $550,000.00 from escrow over Plaintiffs objection. Upon information and belief, Tedesco paid the $550,000.00 to TCG, TCG LLC, or other Tedesco controlled entities notwithstanding Linker’s report that there was no way to prove that TCG, Tedesco, and other loaned money to Software. This is especially egregious because by letter dated July 19, 2013, Tedesco represented that he would pay Perez at least $50,000.00 out of this disbursement. 1138. As of this date, Plaintiff has been denied any meaningful access to Software’s books and records. Plaintiff cannot evaluate the propriety of Software’s transactions without further discovery, which Software has refused to provide. D. Future Payments by Tiburon and Plaintiff Faces Immediate Irreparable Injury 39. Upon information and belief, Software will receive at a minimum another $2,600,000.00 from Tiburon in future installment payments. These payments are assets of Software. Absent a restraining order and injunction, there is a very real and substantial likelihood that Tedesco will distribute Tiburon’s future payments to himself and his personal companies in contravention of New York Limited Liability law and to Plaintiffs detriment. This is especially true considering Tedesco has recently stated both in writing and orally, that he does not consider Plaintiff a “creditor” and that he intends to take the “bulk” of all future payments by Tiburon to repay his and TCG’s alleged “indebtedness”. 40. On or about September 12, 2013, defendant Tedesco provided Plaintiff with an additional spreadsheet purportedly showing how the Defendants anticipate disbursing the remaining Tiburon payments. The September 2013 spreadsheet lists an additional $1,015,924 in alleged “new” loans that were not shown on any of the previously provided spreadsheets. Similarly, the September 2013 spreadsheet contains new categories of liabilities and deductions not on any prior spreadsheets. This was clearly designed to diminish Perez’s share of the proceeds and to enrich Tedesco. FIRST CAUSE OF ACTION: BREACH OF CONTRACT 41. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1” through “40” as if fully set forth herein.42. Plaintiff, and Defendants Tedesco and TCG entered into a valid Operating Agreement. 43. Under the Agreement, Plaintiff has a 42% ownership interest in Software. 44. Plaintiff has performed all of the obligations of the Operating Agreement to be performed on his part. Software was and is an intended third party beneficiary of the Operating Agreement. 45. Defendants Tedesco and TCG have breached the Operating Agreement by, inter alia, (a) refusing to pay Plaintiff his legally entitled 42% ownership interest in Software; (b) misappropriating Software’s assets without Plaintiff's consent; (c) refusing to permit Plaintiff access to Software’s books and records; (d) converting Software’s money for their own use; (e) distributing at least $619,613.78 to employees of TCG or another Tedesco-controlled entity; (f) by discharging personal debt with company funds; (g) by refusing to acknowledge the $1,582,166.99 Plaintiff loaned to Software, and (h) by the unauthorized diversion and comingling of company funds, assets, and resources into other entities and ventures. 46. Defendants Tedesco and TCG have refused to acknowledge Plaintiff's membership rights in Software. Specifically, Defendants Tedesco and TCG have refused to acknowledge: (a) Plaintiff's right to have full access to Software’s books and records; (b) Plaintiff's right to his proportionate share of Software’s profits and assets; (c) Plaintiff's right to disapprove the transfer of company interest; and (d) Plaintiff's right to disapprove loans or encumbrances. 47. By reason of Defendants Tedesco and TCG’s breaches of the Operating Agreement, Plaintiff has been damaged, both individually and derivatively on behalf of Software, in an amount to be determined at trial, but in no event less than $5,460,000.00, plus interest, costs, and disbursements.SECOND CAUSE OF ACTION: BREACH OF FIDUCIARY DUTY 48. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1 through “47” as if fully set forth herein. 49. Pursuant to the Operating Agreement, at all relevant times, each of the parties owe the highest fiduciary duties of loyalty, good faith and fair dealing to each other and the company. 50. Tedesco, in managing the finances of Software’s daily operations, owes an independent, fiduciary duty to Plaintiff. As a fiduciary, Tedesco is required to refrain from conduct the motive of which is his personal gain, or which is in bad faith, or which frustrates Plaintiff's right to share in the Company’s profits. 51. Upon information and belief, Tedesco has breached his fiduciary duties to Plaintiff and Software by engaging in bad faith, unauthorized self-dealing and other willful misconduct that benefited himself at the expense of Software and the Plaintiff including, but not limited to: (a) engaging in numerous self-dealing transactions, (b) causing Software to take on wholly unnecessary and self-serving loans without authority, (c) misappropriating the assets for himself and companies he owns or controls, (d) encumbering the company with debt, (e) failing to keep proper books and records (f) failing to notify Plaintiff of the alleged extensive debt that Tedesco claims is crippling the company; (g) engaging in waste and mismanagement of company assets, and (h) repeatedly lying to Plaintiff to conceal these and his other acts of wrongdoing and gross mismanagement. 52. Likewise, TCG has also breached its fiduciary duties by aiding and abetting Tedesco’s breaches of the Operating Agreement and by converting assets belonging to Plaintiff and/or Software without any rights to or interest in such assets. 53. By reasons of Defendants Tedesco and TCG’s breaches of their fiduciary duties, Plaintiff has been damaged, both individually and derivatively on behalf of Software, in an amount 14to be determined at trial, but in no event less than $5,460,000.00, plus interest, costs, and disbursements. THIRD CAUSE OF ACTION: ACCOUNTING 54. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1” through “53” as if fully set forth herein. 55. Atall times herein mentioned, Plaintiff was a member of Software. 56. Pursuant to New York Limited Liability Law and the Operating Agreement, Plaintiff has the right to review and inspect Software’s books and records, and to have on demand a full and complete accounting of Software’s affairs. 57. As noted above, on or about June 26, 2013, and per an August 5, 2013 agreement, Plaintiff demanded a formal accounting as well as full access to the books and records of Software. Despite Plaintiff's demand, Tedesco has failed and refused to provide the full financial records and accounting of the affairs of Software or to provide access to the books and records. 58. Upon information and belief, Tedesco has wrongfully taken and converted the financial resources of Software for his own use, to the exclusion of Plaintiff and Plaintiff's rights under the Operating Agreement. Upon information and belief, Tedesco has destroyed relevant documents to cover up his tracks. Without access to Software’s books and records, Plaintiff will not be able to assess the propriety of numerous transactions or the accuracy of the Software’s books, records and financial statements. Therefore, Plaintiff has no adequate remedy at law. 59, Defendant Tedesco has exclusive possession of Sofware’s books and records and has provided Plaintiff with insufficient financial information concerning Software. In addition, Tedesco refused to hold the entire proceeds from Tiburon’s August, 2013 payment in escrow pending a full accounting. Upon information and belief, those proceeds were disbursed by Tedesco. 60. Perez did not receive any part of the August 2013 payment made by Tiburon. 1561. Accordingly, Plaintiff demands a full accounting of Software’s financial affairs from its inception to present, under the review and supervision of an independent accountant, and compelling Defendants to furnish Plaintiff with full and unimpeded access to Software’s books and records for this purpose. FOURTH CAUSE OF ACTION: CONVERSION 62. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1” through “61” as if fully set forth herein. 63. As set forth above, in committing multiple acts of misconduct, Defendants caused to be transferred and converted for their own personal use and benefit monies and other assets belonging to Software. These withdrawals and conversions by Defendants were made from the funds and assets of Software without any accounting to Plaintiff and without authorization. 64. In addition, the Defendants have (a) wrongfully converted Plaintiffs equity interest in Software; (b) wrongfully converted compensation that Plaintiff earned but was not paid, and (c) wrongfully converted other amounts owed by Software to Plaintiff to which Plaintiff has a possessory right in at least $5,450,000.00. The exact amount of the illegal misappropriations are not known at this time because Plaintiff has been excluded from and denied his right to full access to the books and records of Software. 65. Defendants have exercised unauthorized dominion and control over the converted property to the exclusion of Plaintiff and Software. 66. As a consequence of the foregoing, Plaintiff, both individually and derivatively on behalf of Sofware, has been damaged in an amount to be determined at trial but no less than $5,460,000.00, plus punitive and special damages. 16FIFTH CAUSE OF ACTION: FRAUD IN THE INDUCEMENT 67. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1” through “66” as if fully set forth herein. 68. Tedesco, as day-to-day manager of Software, was obligated to report to members regarding the financial status of Software and to act in good faith. Prior to the sale to Tiburon in June 2012, Tedesco represented to Perez that he would receive his pro rata share of the $8 million in cash and $5 million in earn outs received by Software in connection with that sale. Tedesco failed to notify Perez of the alleged extensive debt that Defendants claim is crippling Software. 69. Tedesco never intended to honor, or to be bound by, the representations and promises that he made to Perez. Upon information and belief, said representations and promises were false when made, and Tedesco knew that said representations and promises were false. Tedesco also remained silent when he had an obligation to disclose. 70. In furtherance of their continuing scheme to defraud Perez, Tedesco furnished misleading spreadsheets of alleged disbursements that contain omissions, errors and false and fraudulent statements. The false and fraudulent spreadsheets were designed for the purpose of convincing Perez to acquiesce to the Tiburon Sale. 71. Tedesco made the. false representations with the intent to deceive Perez and to induce Perez to act in reliance on the false representations. Perez reasonably relied upon the aforesaid misrepresentations, promises and material omissions, and has suffered a substantial loss, damage, injury and detriment as a result thereof. 72. Perez has been defrauded and victimized by Defendants. As a consequence of Defendants fraud, Perez, both individually and derivatively on behalf of Software, has been damaged in an amount to be determined at trial but no less than $5,460,000.00, plus punitive and special damages in an amount not less than $10,000,000.00. 17SIXTH CAUSE OF ACTION: COMMON LAW FRAUD 73. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1” through “72” as if fully set forth herein. 74. Defendants, Tedesco and TCG did not act honestly with respect to the affairs of Software. Tedesco, with the complicity of TCG, acted fraudulently and engaged in self-dealings. 75. From 2003 to present, Tedesco and TCG did improperly, knowingly and fraudulently create and contrive false loans and improperly misrepresented the assets and liabilities of Software solely for Tedesco and TCG’s benefit. 76. In furtherance of this scheme, Tedesco, with the complicity of TCG, provided false financial statements to Plaintiff. Tedesco’s intentional misrepresentations were designed to induce Perez not to act to protect his rights in Software. Defendants Tedesco and TCG knew these statements to be false. 77. In addition, Tedesco, with the complicity of TCG, knowingly made false promises to Perez regarding the intent and ability of Software to pay Perez for his loans and deferred salary, and to repay LanPro for use of its resources. Tedesco never intended to keep his promises which were designed to induce Perez and LanPro to continue loaning money and resources to Software, and for Perez to continue to defer his salary. 78. Perez justifiably relied upon the representation of Tedesco in refraining from taking action to protect his rights and to continue to give time, money and resources to Software. In addition, by reason of Tedesco and TCG’s fraudulent transaction and accounting the assets of Software have been and are continuing to be depleted. 79. In addition, the Defendants have heretofore conspired to intimidate the Plaintiff into believing that Software is in dire financial straits for the purpose of convincing Plaintiff to agree to 18the repayment of unauthorized “loans” allegedly made by Defendants, and to assent to the Tiburon sale. 80. | As a consequence of Defendants fraud, Plaintiff, both individually and derivatively on behalf of Software, has been damaged in an amount to be determined at trial but no less than $5,460,000.00, plus punitive and special damages in an amount not less than $10,000,000.00. SEVENTH CAUSE OF ACTION: WASTE 81. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1 through “80” as if fully set forth herein. 82. As set forth above, Defendants Tedesco and TCG owed to Software the duties of loyalty, good faith and fair dealing and the obligation to refrain from self-dealing and the waste of the Software’s assets. As set forth above, in committing multiple acts of misconduct, Defendants Tedesco and TCG willfully engaged in self-dealing and permitted the waste of corporate assets for their own personal and corporate benefit and to the detriment of Software. 83. Asa direct, foreseeable and proximate result of this self-dealing and corporate waste, Software has suffered actual injury. 84. Plaintiffs, on behalf of the Software, is entitled to compensatory damages for Defendants Tedesco and TCG’s self-dealing and waste in an amount to be determined at trial, but which is believed to be not less than $5,460,000.00. 85. The above-described actions of Defendant Tedesco and TCG were willful and wanton and entitle Plaintiff, on behalf of Software, to recover punitive damages in an amount to be determined at trial, but not less than $10,000,000.00. 19EIGHTH CAUSE OF ACTION: UNJUST ENRICHMENT 86. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1” through “85” as if fully set forth herein. 87. Defendants’ unlawful conduct set forth above has inequitably conferred a financial benefit upon Defendants to the detriment of Software. 88. Asa direct result of Defendants' inequitable conduct, Defendants have been unjustly enriched at the expense of Software. 89. In addition, Defendants have received assets and monies belonging to Plaintiff. Said Defendants did not provide Plaintiff with consideration for their receipt of said assets. If Defendants are allowed to keep said assets, they would be unjustly enriched at Plaintiff's expense. 90. As a consequence of the foregoing, Plaintiff, both individually and derivatively on behalf of the company, has been damaged in an amount to be determined at trial but no less than $5,460,000.00. NINTH CAUSE OF ACTION: PRELIMINARY INJUNCTIVE RELIEF 91. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1” through “90” as if fully set forth herein. 92. As set forth above, there have been numerous improper transfers of Software’s assets. Plaintiff has and will continue to be irreparably damaged and injured by the continuance of Defendants acts as described above and, unless and until Defendants are restrained, Plaintiff has and will continue to suffer irreparable injury and harm. 93. Given that additional distributions from Tiburon are forthcoming under the sale agreement, time is of the essence. Plaintiff will have no recourse after Software’s assets are distributed, spent, and/or hidden by Defendants. Insofar as Tedesco has used Software as a personal 20piggybank to divert assets, there is a substantial likelihood that Plaintiff's financial interest in Software is in serious and immediate danger of being liquidated or otherwise misappropriated by Tedesco. 94. Defendant Tedesco has indicated that he intends to use the “bulk” of all future payments by Tiburon to “repay” Tedesco and TCG and/or TCG LLC’s purported “indebtedness”. Such liquidation or misappropriation of Plaintiff's financial interest in Software unquestionably will cause substantial and irreparable harm to Plaintiff and Software. Defendant Tedesco has refused to agree to hold the Tiburon sales proceeds in escrow pending a resolution of this matter or a full and complete accounting. Plaintiff has no adequate remedy at law. 95. Accordingly, Plaintiff, both individually and derivatively on behalf of Software, requests that this Court issue an injunctive order: (1) enjoining Defendants from dispersing and/or otherwise transferring assets or monies of Software without prior court approval; (2) Prohibiting Defendants from encumbering or alienating any assets of Software; (3) directing that Tedesco provide Plaintiff with a full accounting of the affairs of Software, and compelling Defendants to furnish Plaintiffs with full and unimpeded access to Software’s books and records; and (4) requiring Defendants to establish an escrow account into which all monies received from Tiburon will be deposited until such time as an accounting and audit of the books and until the dispute between the parties to this action is resolved. TENTH CAUSE OF ACTION: VIOLATION OF NEW YORK LIMITED LIABLITY COMPANY LAW AND NEW YORK PARTNERSHIP LAW «> 96. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs through “95” as if fully set forth herein. 2197. Pursuant to the New York Limited Liability Company Law §§504 and 704 in conjunction with New York Partnership Law §121-604 and related sections, Plaintiff was statutorily entitled to a “Fair value of his interest”. 98. Defendant Tedesco, by his knowing frauds and intentional breaches as detailed above, unlawfully deprived Plaintiff of his statutorily provided entitlements, for the sole purpose of benefitting Tedesco at Plaintiff's expense. 99. In depriving Plaintiff, defendant Tedesco acted in contumacious disregard of his statutory and civil obligations such that Tedesco should be compelled to pay exemplary damages to Plaintiff. 100. As a direct result of Tedesco statutory violations, Plaintiff has been damaged in an amount not less than $5,460,000.00 and is entitled to recover that amount plus statutory interest and costs, plus punitive damages in amount to be determined at trial but not less than three times actual damages. ELEVENTH CAUSE OF ACTION: Appointment Of A Receiver 101. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1 through “98” as if fully set forth herein. 102. As a result of Defendants’ wrongful conduct as set forth above, there is a clear danger that if future installment payments are made to Defendants, that Plaintiffs interest to such funds will be lost, liquidated, or misappropriated, depriving Plaintiff of his right to take immediate possession of such funds. 103. As a party having interest in property that is subject to this action, namely the original and installment payments by Tiburon, Plaintiff is entitled to the appointment of a temporary receiver pursuant to CPLR 6401 to collect the proceeds from Tiburon pending the outcome of this action. The appointment of a receiver or a trustee to manage future payments by Tiburon is the only 22way to effectively preserve Plaintiffs interest during the course of the dissolution proceeding. As such, an Order should be entered appointing a receiver. WHEREFORE, Plaintiff, both individually and derivatively on behalf of Software, demands judgment as follows: A. On the First Cause of Action, awarding damages in an amount to be determined at trial, but in any event not less than $5,460,000.00 plus interest, plus the cost of this suit including disbursements; On the Second Cause of Action, awarding damages in an amount to be determined at trial, but in any event not less than $5,460,000.00 plus interest, plus the cost of this suit including disbursements; . On the Third Cause of Action, issuing an Order requiring a full accounting of all assets of the Company under the review and supervision of an independent accountant, and compelling Defendants to furnish Plaintiffs with full and unimpeded access to Software’s books and records; On the Fourth Cause of Action, awarding damages in an amount to be determined at trial, but in any event not less than $5,460,000.00 plus interest, plus $10,000,000.00 in punitive and special damages, plus the cost of this suit including disbursements; On the Fifth Cause of Action, awarding damages in an amount to be determined at trial, but in any event not less than $5,460,000.00 plus interest, plus $10,000,000.00 in punitive and special damages, plus the cost of this suit including disbursements; On the Sixth Cause of Action, awarding damages in an amount to be determined at trial, but in any event not less than $5,460,000.00 plus interest, plus $10,000,000.00 in punitive and special damages, plus the cost of this suit including disbursements; On the Seventh Cause of Action, awarding damages in an amount to be determined at trial, but in any event not less than $5,460,000.00 plus interest, plus $10,000,000.00 in punitive and special damages, plus the cost of this suit including disbursements; On the Eighth Cause of Action, awarding damages in an amount to be determined at trial, but in any event not less than $5,460,000.00 plus interest, plus the cost of this suit including disbursements; On the Ninth Cause of Action, granting temporary and permanent injunctive relief: (1) enjoining Defendants from dispersing and/or otherwise transferring assets or monies of Software without prior court approval; (2) Prohibiting Defendants from encumbering or alienating any assets of Software; (3) directing that Tedesco provide Plaintiff with an accounting of the affairs of Software, and compelling 23Defendants to furnish Plaintiffs with full and unimpeded access to Software’s books and records; and (4) require defendants to establish an escrow account into which all monies received from Tiburon would be deposited until such time as an accounting and audit of the books and until the dispute between the parties to this action is resolved. J. On the Tenth Cause of Action, awarding damages in an amount to be determined at trial, but in any event not less than $5,460,000.00, plus statutory interest and costs, plus exemplary damages in amount to be determined at trial but not less than three times actual damages; K. On the Eleventh Cause of Action, the appointment of a temporary receiver pursuant to CPLR 6401 to collect the proceeds from Tiburon pending the outcome of this action. L. Together with interest and such other, further and different relief as the Court deems proper in the premises, including the costs and disbursements of this action. Dated: Jericho, New York October 2, 2013 TUNSTEAD & SCHECHTER Attorneys for Plaintiff ~ By: Marvin Schechter, Esq. Michael Mattia Esq. 500 North Broadway, Ste. 101 Jericho, New York 11753 (516) 822-4400 24VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF NASSAU ) ALBERT PEREZ, being duly swom, deposes and says: Tam the named Plaintiff in this action, both individually and derivatively on behalf of Total Computer Software, LLC. I have read the foregoing Verified Complaint and know the contents thereof and that the same are true to my own knowledge, except as to matters stated to be on information and belief, and as to those matters I believe them to be true. Ze fre, ALBERT PEREZ, Sworn to before me this ~ Day of October, 2013 JA % Qualified in Suffolk County Commission Expires July 26, 2014 25INDEX NO. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ALBERT PEREZ, individually and derivatively on behalf of TOTAL COMPUTER SOFTWARE, LLC, Plaintiff, -against- VINCENT TEDESCO, TOTAL COMPUTER SYSTEMS, LTD. d/b/a TOTAL COMPUTER GROUP, TOTAL COMPUTER GROUP, LLC, TOTAL COMPUTER SOLUTIONS, LLC, TOTAL COMPUTERS, LTD. and JOHN DOE CORPORATION, Defendants. SUMMONS AND VERIFIED COMPLAINT TUNSTEAD & SCHECHTER Attorneys for Plaintiff 500 North Broadway, Suite 101 Jericho, New York 11753 (516) 822-4400 Signature/Certification (Rule 130-1.1-a) The undersigned, an attorney at law duly licensed to practice law in the State of New York, certifies that, to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the paper(s) or contention(s) annexed hereto are not frivolous as defined in subsection (s) of section 130-1.1. By: Marvin Schechter Michael Mattia 26