FILED: NEW YORK COUNTY CLERK 04/05/ :11 PM INDEX NO /2015 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/05/2016

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1 FILED: NEW YORK COUNTY CLERK 04/05/ :11 PM INDEX NO /2015 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/05/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x DAVID YU, Index No.: /2015 Plaintiff, -against- PAUL YU a/k/a YINGKUI YU, DAVID SOBERAL, WILLIAM GE a/k/a WILLIAM SIU-KIT GE, and EMEDICAL STRATEGIES LLC, AFFIRMATION OF DAVID YU IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS AND TO EXTEND TIME Defendants x Quebec. DAVID YU, hereby affirms pursuant to CPLR 2106(b) as follows: 1. I am the plaintiff in the above-captioned action. 2. I am a Canadian citizen and currently reside in the City of LaSalle, Province of 3. I respectfully submit this Affirmation in opposition to the motion of defendants DAVID SOBERAL ( Soberal ) (Motion No. 1) and the motion of defendant WILLIAM GE a/k/a WILLIAM SIU-KIT GE ( Ge ) (Motion No. 2), filed on February 19, 2016 and February 26, 2016, respectively, to dismiss my complaint pursuant to CPLR 3211(a)(4) on the ground there is another action pending in the State of New Jersey. 4. I also respectfully submit this Affirmation in opposition to the motion by defendant PAUL YU a/k/a YINGKUI YU ( Paul Yu ) (Motion No. 3), filed on March 17, 2016, for extension of his time to respond to the complaint and to dismiss the complaint pursuant to CPLR 3211(a)(4) on the ground there is another action pending in the State of New Jersey. 5. I have personal knowledge of the facts and circumstances stated herein of 6

2 6. Pursuant to CPLR 2106(b), I hereby affirm that, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States; the statements I make here in my Affirmation are true; and I understand that this document may be filed in an action or proceeding in a court of law. 7. The facts of the case are set forth in Plaintiff s Verified Complaint filed in this court on December 23, A true copy of the Summons and Complaint is submitted herein as Exhibit A. 8. I commenced this lawsuit against Soberal, Ge and Paul Yu, who were the three founding members of emedical Strategies LLC ( emedical ), and emedical itself, for fraud, misrepresentation and non-disclosure in connection with my investment in emedical in the amount of $300,000 pursuant to a Subscription Agreement for Membership Interests of emedical Strategies LLC ( Subscription Agreement ) and an Operating Agreement of emedical Strategies LLC ( Operating Agreement ), both of which I signed on November 15, I was later requested to sign an Amended and Restated Operating Agreement of emedical ( Amended Operating Agreement ), which I did on December 18, In this lawsuit, I request that the Court rescind the Subscription Agreement, the Operating Agreement and the Amended Operating Agreement because of fraud, misrepresentation and non-disclosure, and that the Court grant a judgment in my favor for the return of my investment in emedical of $300,000 plus pre-judgment interest. 10. Both Soberal and Ge are New York residents of 6

3 11. While Paul Yu lives in New Jersey, he works at Memorial Sloan Kettering Cancer Center in Manhattan. 12. Defendant Paul Yu is my cousin. 13. I filed this lawsuit in New York County, State of New York, pursuant to Paragraph 12 of the Subscription Agreement, which provides as follows (emphasis added): 12. Choice of Law and Jurisdiction. This Subscription Agreement will be deemed to have been made and delivered in New York County, New York, and will be governed as to validity, interpretation, construction, effect and in all other respects by the internal laws of the State of New York. The Company and the undersigned (i) agree that any legal suit, action or proceeding arising out of or relating to this Subscription Agreement shall be instituted exclusively in the Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waive any proceeding, and (iii) irrevocably consent to the jurisdiction of the Supreme Court, County of New York, and the United States District Court for the Southern District of New York in any such suit, action or proceeding. 14. A true copy of the Subscription Agreement is submitted herein as Exhibit B. 15. As stated in my Complaint ( 52-79), I did not discover the defendants fraudulent misrepresentations concerning the investment in emedical and its business operations until approximately November of I made my position very clear to the three founding members and the board members of emedical that I would take legal action to protect my rights and seek damages. At the same time, I also closely followed the advice and suggestions proposed by emedical s company attorney, Attorney Margaret J. Davino, Esq., including her negotiations with Ge s counsel. (See Ex. B, ) 17. By July, 2015, it became clear to me that settlement was not going to happen and the three founding members of emedical would not return my investment. Litigation was unavoidable and I therefore instructed my attorney to commence litigation of 6

4 18. Unbeknownst to me, however, Ge filed a complaint in Essex County, State of New Jersey, on June 17, 2015 when I believed the settlement discussion was still ongoing. Ge s New Jersey complaint states that it was FOR DISSOLUTION OF emedical STRATEGIES, LLC and lists emedical, Soberal and Paul Yu as Defendants. Ge also named me as one of the Nominal Parties in Interest together with Anthony Berson, Robert Lipsztein, Robert Ivker, John Paul Tracy Ng, Michaele Anderson, Florence Meisen Ku and Lawrence Tena. 19. Three of the named nominal parties in interest, Michaele Anderson, Florence Meisen Ku and Lawrence Tena, were not even personally known to me. 20. On July 26, 2015 while I was travelling in China, I was notified by my wife in Canada of her receipt of a registered mail with Ge s complaint, which I immediately forwarded to my attorney. A true copy of Ge s New Jersey complaint is submitted herein as Exhibit C. 21. Because of Ge s filing of his dissolution action in New Jersey, my plan to file my own was delayed. For a period of time from July to September, 2015, the other nominal parties in interest wanted me to join them to challenge Ge s action for dissolution, which I declined. 22. I decided not to participate in Ge s New Jersey action because the ultimate relief sought there -- dissolution of emedical -- would not fully compensate me or make me whole for my loss as a result of the wrongful conduct committed against me by the three founding members. I was also concerned that the New Jersey court was not familiar with New York law that would govern my claim against the three founding members and emedical of 6

5 23. In early October, 2015, I was informed by my attorney that Ge s New Jersey action was dismissed and the action was closed. 24. My filing of my own lawsuit in New York was further delayed when in November 2015 I suffered a fractured wrist bone and had to go through a second surgery. 25. On December 23, 2015 when I filed my lawsuit in New York County, Ge s New Jersey action remained dismissed and closed. 26. On December 26, 2015, Paul Yu and emedical were properly served with the complaint. On March 17, 2016, Paul Yu filed his motion to extend his time to respond to my complaint but did not provide any explanation for his default. 27. emedical has completely ignored and refused to defend my lawsuit. On March 24, 2016, my attorney filed a motion for default judgment against emedical. 28. Currently, both defendants Paul Yu and emedical are in default. 29. On January 11, 2016, both Ge and Soberal were both properly served with the complaint. 30. In early February, 2016, I was informed by my attorney that Ge s New Jersey action was reinstated in New Jersey. 31. Defendants motion to dismiss my New York lawsuit is contrary to the express provision of the Subscription Agreement and is nothing but tactics to delay my lawsuit and to make me spend unnecessarily legal fees. For the foregoing reasons and those set forth in the accompanying Memorandum of Law, plaintiff respectfully requests this Court to deny defendants motion to dismiss and defendant Paul Yu s motion to extend time, and grant plaintiff such other and further relief as the Court deems just and proper of 6

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