SCANNEDON 1011912010

FILED: NEW YORK COUNTY CLERK 10/19/2010

NYSCEF DOC. NO. 2

INDEX NO. 113722/2010 RECEIVED NYSCEF: 10/22/2010

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK OSCAR AMAR and BELLAIR FIFTH AVENUE INC.,

Index No. Date Purchased:

SUMMONS Plaintiffs -againstJOSEPH R. MIRTO and 5TH AVENUE CENTER FOR WELLNESS AND INTEGRATIVE CARE LLC, 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 attorneys for the plaintiff within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after service is complete if this summons is not personally delivered to you within the State of New York). In case of you failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: New York, New York October 13, 2010
ALLAN H. GREENBERG,-ESQ. Attorney for Plaintiffs /-60 East 42"dStreet Suite 4600 New York, New York 10165

The basis of venue is that defendants' principal places of business are located in New York County.

Defendants

,uu

;esses:

(2 12) 983-2440

Joseph R. Mirto 580 Park Avenue Ground Floor New York, New York 10036

5'h Avenue Center for Wellness and Integrative Care LLC ' ?* 800A Fifth Avenue e Ground Floor New York, New York 1006F

I ED

OCT I 9 2010
COUNTY CLERK'S OFFICE

NEW YORK

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK OSCAR AMAR and BELLAIR FIFTH AVENUE INC., Plaintiffs, -againstJOSEPH R. MIRTO and 5TH AVENUE CENTER FOR WELLNESS AND INTEGRATIVE CARE LLC, Defendants.

Index No.

COMPLAINT

16113722

Plaintiffs Oscar Amar and Bellair Fifth Avenue Inc., by their attorney, Allan H. Greenberg, Esq., complaining of the defendants jointly and severally, allege as follows:

OVERVIEW
1.

Plaintiffs bring this action for damages resulting from breach of

agreement, conversion, misrepresentation and fraud by defendants .

2.

Defendant Joseph R. Mirto (Mirto), a principal of defendant 5h Avenue

Center For Wellness and Integrative Care LLC (Wellness), was a stranger to plaintiff Oscar Amar (Amar) prior to the year 2010. Commencing January, 2010, Mirto approached Amar at Amars offices in Toronto, Canada to induce Amar to rent commercial premises from Wellness in New York, New York. The premises would be used for offices and treatment rooms for a laser clinic. The premi
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FitPtEPD

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consisted of raw space at street level in a building located at 800A Fifth Avenue, New York, New York.

3.

Mirto wined and dined Amar in New York. He promised Amar that

Wellness would construct high quality offices, treatment rooms and a reception area in the premises and that it would offer a lease to Bellair which would permit signs for the laser clinic to be placed in four windows at sidewalk level on Fifth Avenue and a brass plaque to be placed outside the sidewalk entrance to the premises.
4.

Mirto pressured Amar to make payments to hold the premises for Bellair

prior to drafting, negotiating and executing a lease. Over a period of six weeks beginning on May 5, 2010, Amar made two payments to Mirto totaling $70,000.00, a payment to Wellness in the sum of $15,000.00 for rent, and a payment to Mirto in the sum of $5,800.00 for a fixture in the reception area. Neither Amar nor Bellair had been offered a lease for the premises and Mirto agreed in writing to return certain sums paid by Amar if no lease was negotiated and executed. No lease was ever negotiated and executed.

5.

By July, 2010, Mirto had withdrawn his promise of signage for the clinic

and had not presented a draft of a lease. The premises was incomplete and not usable for business. Only then did Mirto present a draft of a license agreement to Amar. The draft agreement omitted certain provisions originally promised by Mirto which were important to Amar. Amar demanded the return of sums paid to Mirto and Wellness. Mirto and Wellness refused to return Amars payments to him. Upon information and belief, Mirto and Wellness converted sums paid to them by Amar to their own use. Upon information and belief, Mirto and Wellness knew the prime lease for the premises

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required the prime landlords consent or approval to a sublease or license for the premises, and neither Mirto nor Wellness ever sought such consent or approval.

THE PARTIES

6.

Plaintiff Amar, a resident of Toronto, Canada and a principal of plaintiff

Bellair Fifth Avenue Inc. (Bellair), is in the business of establishing and operating facilities known as laser clinics.

7.

Plaintiff Bellair is a New York corporation formed to operate a laser clinic

facility in New York, New York.

8.

Upon information and belief, defendant Mirto is a chiropractor with an

office address at 580 Park Avenue, Ground Floor, New York, New York I0065 and a principal of defendant Wellness.
9.

Upon information and belief, defendant Wellness is a New York limited

liability company with an address at 800A Fifth Avenue, New York, New York 10065,

VENUE
IO.

At all relevant times, defendants have maintained office addresses in the

County and State of New York. All material events which give rise to the causes of action set forth herein transpired in the County and State of New York. The Demised Premises (as hereinafter defined) are located in the County and State of New York.

STATEMENT OF FACTS
11.

Upon information and belief, Wellness, as tenant, entered into a certain

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lease (Lease) dated as of November I O , 2009 with 615 Building Company LLC, as landlord (Landlord), for a portion of the ground floor known as Suite A in the building known as 800 Fifth Avenue, New York, New York 10065 (the Demised Premises).

12.

Prior to January, 2010, Mirto and Amar did not know one another and

neither of them had ever communicated with the other.

13.

In January, 2010 Mirto started to call Amar repeatedly on the telephone

and to send faxes to him.

14.

Mirto offered in his telephone calls and faxes to rent a portion of the

Demised Premises to Amar.

15.
16.

Mirto was soliciting Amar as a tenant in the Demised Premises.

In January, 2010, the Demised Premises was raw, unbuilt space without

interior walls, finished floors or finished ceilings. 17. Amar traveled to New York and met with Mirto. Mirto took Amar to lunch

at Cipriani. He took Amar to dinner on various occasions at Le Bilboquet. Amar and Mirto discussed conditions which had to be met by Mitto and Wellness before Bellair would enter into a lease for a portion of the Demised Premises.
18.

Mirto represented to Amar that certain conditions required by Bellair would

be incorporated into a lease for Bellair, as a tenant in a portion of the Demised Premises.
19.

Mirto represented to Amar that the Demised Premises would be built to

contain offices, treatment rooms and a reception area of the same high quality and first
class standards as those in laser clinics operated by Amar in Toronto, Canada under

the name Bellair.

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20.

Mirto represented that the lease would permit Bellair to install signs of

high qualit) similar to those used in Toronto which would be visible in street level windows of the Demised Premises on Fifth Avenue and to install a brass plaque of high quality identifying Bellair on the outside wall of the building at the entrance door from the sidewalk to the Demised Premises. 21. Mirto represented to Amar that Bellair would have the right to approve any

change of tenants in the Demised Premises.

22.

Upon information and belief, Mirto and Wellness knew the Landlords prior

consent or approval was required for Bellair to occupy the Demised Premises, but they never so advised Amar or Bellair.

23.

Upon information and belief, Mirto and Wellness knew the Landlords prior

consent or approval was required for Bellair to install signs in or about the Demised Premises, but they never so advised Amar or Bellair.

24.

In May and June, 2010, Mirto insisted that Amar make payments to him

and Wellness in order to reserve the Demised Premises for Bellairs use and occupancy.

25.

Amar objected to making payments to Mirto or Wellness prior to the full

negotiation and execution of a lease for Bellair for a portion of the Demised Premises. 26. Mirto insisted Amar make payments immediately and prior to the delivery

of a draft of a lease for Bellair for a portion of the Demised Premises.

27.

On May 5,2010, Mirto and Amar met at Mirtos office at 580 Park Avenue,

New York, New York. Mirto threatened to rent the Demised Premises to a third party unless Amar immediately wired the sum of $35,000.00 to a Signature Bank account in
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. .... . . . . ... .
~

the name of Joseph R. Mirto. 28. At Mirtos specific request, Amar paid the sum of $35,000.00 to Mirto on

May 5, 2010 by wire transfer to a Signature Bank account in the name of Joseph R. Mirto.
29.

Mirto agreed in a writing dated May 5, 2010 to return said sum of

$35,000.00 to Amar upon demand if, for any reason whatsoever, Amar or Bellair did not
enter into a lease for a portion of the Demised Premises which was fully satisfactory to Amar and his attorneys.

30.

Mirto insisted that Amar sign a writing consisting of one page plus a

signature page dated May 5, 2010 with the words Terms and Conditions set forth beneath the Wellness letterhead. The writing makes reference to the term of a lease and to rent, but it is otherwise devoid of details necessary to constitute a lease. The first sentence reads with carnival-like enthusiasm as follows: Congratulations! You have been chosen for a once in a lifetime opportunity to be part of the 5hAvenue Wellness Center located in the heart of one of the most renowned areas of New York. 31. Amar thereafter demanded that Mirto provide a draft of a lease for Bellair

for a portion of the Demised Premises. 32. 33.

Mirto insisted Amar make additional payments.

At Mirtos insistence, Amar paid the additional sum of $15,000.00 to

Wellness by check dated June 10,2010.

34.

At Mirtos insistence, Amar paid the additional sum of $35,000.00 to Mirto

by check dated June 16,2010.

35. At Mirtos insistence, Amar paid the sum of $5,800.00 Mirto for the cost to
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of a receptionists counter in the reception area of the Demised Premises.

36.

Upon information and belief, the two payments of $35,000.00 which were

paid by Amar to Mirto for the account of Wellness were converted by Mirto to his own use.

37.
2010.

The Demised Premises was under construction in May, June and July,

38.

Upon information and belief, agents of Mirto or Wellness were

constructing the Demised Premises in May, June and July, 2010.

39.

The Demised Premises was not ready for use and occupancy in May,

June and July, 2010.

40. At the end of June, 2010, Mirto withdrew his representation that Bellair
would be permitted to install signs in the four windows of the Demised Premises on Fifth Avenue and a brass plaque at the entrance to the Demised Premises.

41. In July, 2010, Mirto gave Amar a draft of a document entitled License
Agreement between Wellness, as licensor, and Bellair, as licensee, with respect to a portion of the Demised Premises (License Agreement). Mirto never furnished a draft of a lease for the Demised Premises.

42.

The draft License Agreement did not contain material representations

previously made by Mirto to Amar. There was no provision to permit Bellair to install signs in and about the Demised Premises. There was no provision granting Bellair the right to approve other tenants in the Demised Premises.
43.

Upon information and belief, the Lease between Wellness and the

Landlord for the Demised Premises requires that Wellness seek and obtain the
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Landlords approval or consent prior to subletting or licensing a portion of the Demised Premises. The draft License Agreement made no reference to its being subject to Landlords consent or approval.
44.

On or about July 29, 2010, Amar, by his attorney, demanded in writing

that Mirto and Wellness return all sums paid to each of them by Amar.
45.

Despite Amars demand, Mirto and Wellness have refused to return any

sums paid to them by Amar.

46.

Upon information and belief, Wellness never sought the Landlords

approval or consent to lease, sublet or license a portion of the Demised Premises to Bellair.
47.

Plaintiffs relied on representations made by Mirto and Wellness, to their

detriment, and have suffered extensive damages including, but not limited to: (a) (b) (c) the costs of purchased office equipment; the costs of purchased office furniture and supplies; the costs of renting a residential apartment for one year for the use of Bellairs personnel; and (d) the sums paid to Mirto and Wellness. AS AND FOR A FIRST CAUSE OF ACTION (Breach of Agreement)
48.

Plaintiffs repeat, reiterate and reallege each and every allegation

contained in paragraphs Ithrough 47 above, as if set forth herein again at length.

49.

Mirto agreed in writing to return the sum of $35,000.00 paid to him by

Amar in the event that there was no lease between Wellness and Bellair for the

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Demised Premises which was negotiated and executed, and Mirto and Wellness accepted the additional sums of $35,000.00, $15,000.00 and $5,800.00 from Amar under the same terms and conditions.

50.
51.

No lease between Wellness and Bellair was negotiated or executed.

Demand was duly made for the return of sums paid by Amar to Mirto and

Wellness.

52.
53.

Mirto and Wellness have refused to return any sums paid by Amar. As a result of Mirtos breach of his agreement, plaintiffs have suffered the

loss of $90,800.00.

AS AND FOR A SECOND CAUSE OF ACTION (Conversion)

54. Plaintiffs repeat, reiterate and reallege each and every allegation
contained in paragraphs 1 through 53 above, as if set forth herein again at length.

55. At Mirtos insistence, Amar paid him and Wellness the sum of $90,800.00,
which sum was returnable if no lease was negotiated or executed.

56.

Mirto and Wellness exercised unauthorized dominion over such sum to

the exclusion of plaintiffs right to have such sum returned.

57. As a result of defendants conversion of such sum, plaintiffs suffered the

loss of $90,800.00.

AS AND FOR A THIRD CAUSE OF ACTION (Misrepresentation)

58.

Plaintiffs repeat, reiterate and reallege each and every allegation

contained in paragraphs 1 through 57 above, as if set forth herein again at length.

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59.

Mirto, individually and as a principal o Wellness, falsely representet to

Amar that a lease between Wellness and Bellair for a portion of the Demised Premises would include permission for Bellair to install signs in four windows of the Demised Premises at sidewalk level on Fifth Avenue and to install a brass plaque at the sidewalk entrance door to the Demised Premises.

60. The proposed License Agreement contained no such representations.

61.
Mirto, individually and as a principal of Wellness, omitted to advise Amar

of the material fact that any sublease or license for the Demised Premises was subject to Landlords consent or approval.

62. Amar and Bellair relied to their detriment on the misrepresentations and
omissions of defendants and paid Mirto and Wellness the sum of $90,800.00, and incurred additional costs and expenses in connection with preparations for the establishment of a laser clinic.

63. As a result of defendants misrepresentations and omissions, plaintiffs

suffered losses and damages in an aggregate amount to be determined at trial, but in excess of the sum of $350,000.00.
AS AND FOR A FOURTH CAUSE OF ACTION (Fraud)

64.

Plaintiffs repeat, reiterate and reallege each and every allegation

contained , , I paragraphs 1 through 63 above, as if set forth herein again at length.

65.

Mirto, individually and as a principal of Wellness, knowingly omitted to

disclose to or advise Amar and Bellair of the material facts that the Landlords consent or approval was required (i) for Wellness to enter into a binding lease, sublease or
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license agreement with Bellair with respect to the Demised Premises, and (ii) for any such lease, sublease or license agreement to permit Bellair to install signs in four windows of the Demised Premises at sidewalk level on Fifth Avenue and to install a brass plaque at the sidewalk entrance door to the Demised Premises.

66. Mirto and Wellness knowingly misrepresented and omitted such material
facts for the purpose of inducing Amar and Bellair to make payments to them prior to negotiating and executing an agreement with respect to the Demised Premises.

67.

Amar and Bellair relied to their detriment on the fraudulent

misrepresentations and omissions of Mirto and Wellness.

68. As a result o the foregoing, plaintiffs suffered losses and damages in an f

aggregate amount to be determined at trial, but in excess of the sum of $600,000.00.

WHEREFORE, plaintiffs respectFully request that this Court enter judgment

against defendants as follows:

A.

Awarding repayment in the sum of $90,800.00; Compensatory damages in an amount to be determined at trial, but

B.

in excess o the sum of $350,000.00; f

C.

Punitive damages in an amount to be determined at trial, but in

excess of the sum of $600,000.00;

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D.
E.

The costs and disbursements of this action, including reasonable

attorney's fees and disbursements; and Such other and further relief as this Court deems just and proper.

Dated: New York, New York October 13,2010

ALLAN H. GREENBERG Attorney for Plaintiffs 60 East 42"' Street, Suite 4600 New York, New York 10165

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21 2-983-2440

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ALL-STATE LEGAL@

SIIPREME (Y)lJl<'l' OF 'THE STA'I'E OF NEW YOIW CC)LIN'.I'Y OF NEW YOKK

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OSCAR AMAR and

BEL,J,AI I-? Fl F'l'H AVEN l_iI NC., I3 Plaint i ffs,

-against-

JOSEPI i IC. MIRTC) a i d ST" AVENUE C I ~ N ' l ' b X FOR WE1,LNKSS AND IN'I'tC;RA'I'IVE CARE l,lX', Defcndants.

SIJMMONS ANT) COMPLAIN'I' ALLAN tl. GREENBERG, ESQ.

A ttorn(Jyy( ,fiw s)

Plaintiffs
Qfiic.r Addrr.ss

d GI. No.:

60 EAST 42N'1S'I'KL)GT, SUITE 4600 N E W YOKK, NEW YORK 1016s ( 2 12) 983-2440

Pursunnt to 22 NYCRR 73O-l.l-a, undersigned, a n attorney arirnitted to practice in the courts of New York State, the certifies that, upon infbrmation and belief' and reasonable inquiry, (1) the contentions contained i n the annexed document are not frivolous nrrd that (2) if' the annexed docum.en,t is a n initintirig pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attornc:y or othcr persons responsible fhr thc. illegal conducl are not participating i n the matter or sharing in any f i e eurnrd Iherrfrom and that (ii) if the rmtter inuolues potential claims for personal irkjurv or utrongfu.1 death, the m a t t v was not obtained in violation of 22 NYCRR. 1200.41-a. Dated: .............................................
SignaLurc

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Print Signer's I" -----.Narrit!................................................................................................................... .I" -.

Sem~ice of

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ropy of the uii,th,%n.

io hereby adrri,ill,c?d.

Dated:

Lk1,led:
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ALLAN H. GREENBERG, ESQ.