You are on page 1of 9

SCANNED ON 1111012009

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK
.................................................................. X
GABRIEL STULMAN, : Index No. 602365109

Plaintiff,

- against - : COMPLAINT

JOHN DORY LLC, JOSEPH CAMPANARO,


personally, and ROBERT M. PRICE, Jr., personally, :

Plaintiff Gabriel Stulman (“Stulman” or “Plaintiff ’) by his attorneys

Menaker & Herrmann LLP, for his Complaint against defendants John Dory LLC (“John

Dory”), Joseph Campanaro (“Campanaro”), and Robert M. Price, Jr. (“Price”)

(collectively “Defendants”), alleges as follows:

1. Stulman is a natural person residing at 96 Grove St., Apt. #7, New

York, New York 10014 and a member of John Dory, a New York limited liability

company, duly organized and existing under the laws of the State of New York, with a

principal place of business at 90 Bedford St., New York, NY, 10014, and operating a

restaurant called Market Table located at 54 Carmine Street, New York, NY 10014.

2. On ififormation and belief, defendant Campanaro is a natural person

with a place of business at 90 Bedford St., New York, NY 10014, and a member of John

Dory.

Supreme Court Records OnLine Library - page 1 of 9


3. On information and belief, defendant Price is a natural person with a

place of business at 90 Bedford St., New York, NY 10014, and at 54 Carmine Street,

New York, NY 10014, and is a member of John Dory.

4. In or about February 2007, Plaintiff, Campanaro, and Price, together,

formed John Dory with the intention to develop and run restaurants in New York City.

5. Plaintiff held a 20% equity and distribution interest (the

“Membership Interest”) in John Dory.

6. On or about March 31, 2008, Plaintiff resigned as a managing

member and officer of John Dory, but retained his Membership Interest.

7. By letter dated May 1, 2009, Plaintiff was advised by John Dory’s

counsel that a merger had been effected by a merger between John Dory and John Dory

Merger LLC (“John Dory Merger”) (“Merger”) and that the merger terminated his

Membership Interest in John Dory.

8. The May 1, 2009 letter was accompanied by a document headed

“John Dory, LLC Consent of Members Holding a Majority In Interest” in John Dory and

an “Agreement of Merger” for John Dory and John Dory Merger, which revealed that the

surviving company in the Merger was John Dory Merger.

9. Plaintiff had no knowledge of a merger or a proposed merger

between John Dory and John Dory Merger prior to his receipt of the May 1,2009 letter.

-2-

Supreme Court Records OnLine Library - page 2 of 9


10. Plaintiff was never given any notice or an opportunity to object to,

dissent from, or otherwise oppose the Merger and only learned of the merger after the

fact.

11. The Merger, despite its intent, was ineffective in removing Plaintiff

as a member of John Dory.

12. The May 1, 2009 letter contained an offer from Defendants in the

sum of $102,299.70 as the fair market value of Plaintiffs Membership Interest in John

Dory.

13. This sum does not represent the fair value of Plaintiffs Membership

Interest in John Dory.

14. On or about May 7, 2009, Plaintiff informed Defendants of his

demand that he receive the fair value for his Membership Interest in John Dory.

15. Article 10 of the N.Y. Limited Liability Company Law entitles

Plaintiff to the fair value of his Membership Interest in John Dory

16. The proper fair value of plaintiffs Membership Interest in John

Dory is an amount yet to be determined, but in excess of $300,000.

17. On or about March 10, 2009 Stulman received a K-1 from John

Dory indicating his share of the profits of John Dory in 2008 to be $62,000.

18. Plaintiff has received no distributions of profits from John Dory

since the inception of the company despite the fact that John Dory has made distributions.

-3-

Supreme Court Records OnLine Library - page 3 of 9


19. On or about June 2009, Plaintiff, after making a demand, was given

an opportunity to inspect the books and records of John Dory.

20. On information and belief, in the first quarter of 2009 John Dory

earned profits of at least $150,000, Plaintiffs share of which is at least $30,000, in

keeping with his 20% Membership Interest.

21. On information and belief, John Dory thereafter continued to make

profits at a comparable rate and therefore currently has earned additional profits of

approximately $225,000, Plaintiffs share of which is believed to be approximately

$45,000.

22. To date, Stulman has received no distributions or payments from

John Dory for his Membership Interest, or the fair value of the Membership Interest.

23. No previous application for the relief herein sought has been made.

AS AND FOR A FIRST CAUSE OF ACTION


(for Breach of Contract)

24. Plaintiff repeats each and every allegation contained in the foregoing

paragraphs of this Complaint as if fully set forth herein.

25. Defendants breached $5 7.1.1 and 7.3.1 of the operating agreement

by failing to allocate and distribute funds to Plaintiff, and further breached 5 14 of the

operating agreement by failing to serve proper notice upon Plaintiff.

26. By reason of the foregoing, Plaintiff is entitled to recover damages

against Defendants in the amount of at least $437,000.00 for the value of Plaintiffs

-4-

Supreme Court Records OnLine Library - page 4 of 9


Membership Interest in John Dory and unpaid disbursements, together with interest,

attorneys’ fees, and the costs and disbursements of this action.

AS AND FOR A SECOND CAUSE OF ACTION


(Conversion)

27. Plaintiff repeats each and every allegation contained in the foregoing

paragraphs of this Complaint as if fully set forth herein.

28. Defendants have taken Plaintiffs Membership Interest in John Dory

without notice or opportunity to object, dissent, or otherwise oppose the taking.

29. Defendants have failed to offer Stulman the fair value of his

Membership Interest in John Dory in violation of Article 10 of the N.Y. Limited Liability

Company Law.

30. Defendants have further taken Plaintiffs distributions allocated to

his Membership Interest.

31. By reason of the foregoing, Plaintiff is entitled to recover damages

against defendants in the amount of at least $437,000.00 for the value of Plaintiffs

interest in John Dory and unpaid distributions, together with interest, attorneys’ fees, and

the costs and disbursements of this action.

AS AND FOR A THIRD CAUSE OF ACTION


(Seeking a Declaratory Judgment)

32. Plaintiff repeats each and every allegation contained in the foregoing

paragraphs of this Complaint as if fully set forth herein.

-5-

Supreme Court Records OnLine Library - page 5 of 9


33. Defendants failed to properly comply with the requirements of

Article 10 of the N.Y. Limited Liability Company Law in performing their merger and

ousting Plaintiff from John Dory.

34. As a result, Stulman is still a member in good standing of John Dory.

35. By reason of the foregoing, Plaintiff is entitled to an order and

judgment declaring him to be a member in good standing of John Dory, together with

interest, attorneys’ fees, and the costs and disbursements of this action.

AS AND FOR A FOURTH CAUSE OF ACTION


(Setting Aside or Rescinding the Merger)

36. Plaintiff repeats each and every allegation contained in the foregoing

paragraphs of this Complaint as if fully set forth herein.

37. Defendants failed to properly comply with the requirements of

Article 10 of the N.Y. Limited Liability Company Law in performing their merger and

ousting Stulman from John Dory.

38. As a result, Stulman requests the Court set aside or rescind the

merger pursuant to NY LLC Law $ 1002(g).

39. By reason of the foregoing, Plaintiff is entitled to a declarative

judgment from this Court stating that Stulman is a member in good standing of John

Dory, together with interest, attorneys’ fees, and the costs and disbursements of this

action.

-6-

Supreme Court Records OnLine Library - page 6 of 9


AS AND FOR A FIFTH CAUSE OF ACTION
(For an Order to Determine the Value)

40. Plaintiff repeats each and every allegation contained in the foregoing

paragraphs of this Complaint as if fully set forth herein.

41. Defendants failed to properly comply with the requirements of

Article 10 of the N.Y. Limited Liability Company Law in offering Plaintiff the fair value

of his interest in John Dory and all distributions allocated to his Membership Interest.

42. By reason of the foregoing, Plaintiff demands an order to be entered

herein determining the rights of Plaintiff to receive payment for his Membership Interest

in John Dory and fixing the fair value of the Membership Interest as of the close of

business on the day prior to the time the alleged Merger occurred, which is May1 2009,

to be paid by Defendants to Plaintiff, with interest thereon from May 1, 2009, and further

ordering Defendants to pay Plaintiff the unpaid distributions allocated to his Membership

Interests.

WHEREFORE, Plaintiff demands judgment against Defendants awarding

(i) for his first and second causes of action damages in the amount of at least

$437,000.00, together with interest, attorneys’ fees, and the costs and disbursements of

this action; (ii) in the alternative, for his third cause of action an order and declaratory

judgment from this Court stating that Stulman is a member in good standing of John

Dory; (iii) in the alternative, for his fifth cause of action an order to determine the rights

-7-

Supreme Court Records OnLine Library - page 7 of 9


of Plaintiff regarding his Membership Interest and distributions, and (iv) such other and

further relief as the Court may deem just and proper.

Dated: New York, New York


November 6,2009

Respectfully submitted,

MENAKER & HERRMANN LLP

Samuel F. Abernethy

Attorneys for Plaintiff 91


10 East 40th Street
New York, NY 10016
(212) 545-1900

-8-

Supreme Court Records OnLine Library - page 8 of 9


Supreme Court Records OnLine Library - page 9 of 9