FILED: ERIE COUNTY CLERK 09/19/ :42 PM INDEX NO /2014 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/19/2014

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1 FILED: ERIE COUNTY CLERK 09/19/ :42 PM INDEX NO /2014 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/19/2014 STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE WILL FOODS, LLC William Street Buffalo, New York Index No.: SUMMONS Plaintiff, vs. PROTOCOL OF AMHERST, INC. d/b/a PROTOCOL RESTAURANT 6766 Transit Road Williamsville, New York Defendant. TO THE ABOVE NAMED DEFENDANT: 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 a summons, to serve a notice of appearance, on the plaintiffs attorney(s) within 20 days after the service of this summons, exclusive of the day of service, or within 30 days after completion of service where service is made in any other manner than by personal delivery within the State. In case of your failure to appear or answer, judgment may be taken against you by default for the relief demanded in the Complaint.

2 DATED: Buffalo, New York September 19, 2014 LIPPES MATHIAS WEXLER FRIEDMAN LLP Is Brendan H. Little Brendan H. Little, Esq. Benjamin T. White, Esq. Attorneys for Plaintiff 665 Main Street, Suite 300 Buffalo, NY T: (716) F: (716)

3 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE WILL FOODS, LLC 1075 William Street Buffalo, New York Index No.: VERIFIED COMPLAINT Plaintiff, vs. PROTOCOL OF AMHERST, INC. d/b/a PROTOCOL RESTAURANT 6766 Transit Road Williamsville, New York Defendant. Plaintiff Will Foods, LLC (the "Plaintiff') for its verified causes of action against Defendant Protocol of Amherst, Inc. d/b/a Protocol (the "Defendant") herein alleges upon information and/or knowledge and/or belief: 1. That at all times hereinafter mentioned, the Plaintiff was and is a limited liability company authorized to do business in the State ofnew York. 2. That at all times hereinafter mentioned, Defendant was and is a domestic business corporation authorized to do business in the State of New York. 3. That at all times hereinafter mentioned, Defendant was and is doing business as Protocol Restaurant. 4. At all times relevant herein, Plaintiff was and is engaged in the food distribution business. 5. That Defendant entered into an agreement with the Plaintiff and/or the Plaintiffs predecessor for the purchase of certain goods (the "Agreement").

4 predecessor. said goods. 6. That the Agreement was assigned and/or acquired from the Plaintiff's 7. In accordance with the terms of the Agreement, Plaintiff provided Defendant with 8. Defendant was sent invoices, totaling $14,349.98, for its purchase of goods from Plaintiff. A true and correct copy of the summary of the invoices is attached hereto as Exhibit A. Plaintiff. 9. Pursuant to terms of the invoices, payment to Plaintiff is past due. 10. Defendant has failed to pay the subject invoices for the goods delivered by 11. On or about July 29, 2014, Plaintiff's counsel sent a demand letter to Defendant demanding payment. 12. To date, Defendant has failed to provide payment to the Plaintiff. AND FOR A FIRST CAUSE OF ACTION (Plaintiff's Cause of Action for Breach of Contract) 13. Plaintiff hereby repeats and realleges the allegations set forth in Paragraphs 1 through 12 of this Verified Complaint with the same force and effect as if set forth at length herein. 14. Defendant breached the contract with Plaintiff by, among other things, failing and/or refusing to make payments in accordance with its terms. 15. There is now due and owing the principal amount of $14, together with prejudgment interest as set forth therein from Defendant to Plaintiff. 16. By reason of Defendant's breach of the contract, Plaintiff has been damaged in the amount of $14, together with prejudgment interest thereon.

5 AND FOR A SECOND CAUSE OF ACTION (Plaintiff's Cause of Action for Unjust Enrichment) 17. Plaintiff hereby repeats and realleges the allegations set forth in Paragraphs 1 through 16 of this Verified Complaint with the same force and effect as if set forth at length herein. 18. By reason ofthe acts of Defendant, and without any wrongdoing on the part of the Plaintiff, Defendant has been unjustly enriched to Plaintiffs detriment. 19. Plaintiff has no adequate remedy at law. 20. By reason of the foregoing, Plaintiff has been damaged m the amount of $14, together with prejudgment interest thereon. AND FOR A THIRD CAUSE OF ACTION (Plaintiff's Cause of Action for Account Stated) 21. Plaintiff hereby repeats and realleges the allegations set forth in Paragraphs 1 through 20 of this Verified Complaint with the same force and effect as if set forth at length herein. 22. Defendant was sent invoices, setting forth the amount due and owing. Said invoices are a statement of account. 23. At no time did Defendant object to the statement of account. 24. Said statement of account accordingly constitutes an account stated, the amount of which Defendant is liable to Plaintiff. 25. Plaintiff accordingly demands judgment in the amount of such account, $14, together with prejudgment interest thereon.

6 WHEREFORE, Plaintiff Will Foods, LLC demands judgment against the Defendant Protocol of Amherst, Inc. d/b/a Protocol as follows: A. On its first cause of action, damages in the amount of $14, together with prejudgment interest thereon; B. On its second cause of action, damages in the amount of $14, together with prejudgment interest thereon; C. On its third cause of action, damages in the amount of $14, together with prejudgment interest thereon; D. The costs and disbursements of this action, together with any other and further relief as the Court may deem just and proper. DATED: Buffalo, New York September 19, 2014 LIPPES MATHIAS WEXLER FRIEDMAN LLP s/ Brendan H. Little Brendan H. Little, Esq. Benjamin T. White, Esq. Attorneys for Plaintiff 665 Main Street, Suite 300 Buffalo, NY P:

7 STATE OF NEW YORK ) COUNTY OF ERIE ) ss: VERIFICATION JILLIAN L. SUTTELL, being duly sworn deposes and says: I am the Chief Financial Officer an authorized representative of the Plaintiff Will Foods, LLC; I have read the foregoing Verified Complaint and know the contents thereof; the same is true to my knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe to be true. Swoi.Jl to before me this ~<lay of September, 2014 Notary