FILED: NEW YORK COUNTY CLERK 01/22/ :04 PM

Transcription

1 FILED: NEW YORK COUNTY CLERK 01/22/ :04 PM INDEX NO /2014 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 01/22/2016 EXHIBITF

2 Yeskoo Hogan &. Tamlyn, LLP 909 Third Avenue, 28th Floor New York. NY Attorneys for Plaintiff SUPREME COURT OF STATE OF NEW YORK COUNTY OF NEW YORK X ASSOCtATED TELEPHONE DESIGNS, a No /14 Division ofnetwork Voice and Data Telecommunications., Inc., -against- Plaintiff. MANHATTAN TELEPHONE CORPORAnON, dlb/a Metropolitan Telecommunications and MetTel, Defendant. _... x ~c;...i) STIPULATION PERMI1TING FIRI!I' AMENDED COMPLAINT AND CHANGING CAPTION OF ACTION IT IS HEREBY STIPULATED AND AGREED that plaintiff may file a L~ended complaint in the fonn annexed hereto and that the caption ofthis action may be changed to: SUPREME COURT OF STATE OF NEW YORK COUNTY OF NEW YORK x NETWORK TELBCO SERVICES, INC., NETWORK VOICE AND DATA COMMUNICAnONS, INC. AND ASSOCIATED TELEPHONE DESIGN. a Division ofnetwork Voice and Data Communications, Inc. and fonner New York Corporation, Plaintiffs.

3 -apinst- MANHATTAN TELEPHONE CORPORAnON, dibia Metropolitan Telecommunications and MetTel, Defendant --..._ _ _.. Dated: g;;:ic/' _, 2014 YESKOO HOGAN &. TAMLYN. LLP Attorneys for Plaintiff 909 Third Avenue, 28th Floor New York, New York I /17/ 1_ By: ill iift' t(jr' Richard C. 'ASkoo... X FEIN & JAKAB Attorneys for Defendant 233 Broadway - Suite 930 New York. NY

4 IFILED: NEW YORK COUNTY CLERK 03/25/ : 29 AMI INDEX NO /2014 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/25/2015 Yeskoo Hogan & Tamlyn, LLP 909 Third Avenue, 28 th Floor New York, NY Attorneys for Plaintiff SUPREME COURT OF STATE OF NEW YORK. COUNTY OF NEW YORK )( NETWORK. TELECO SERVICES, INC., No /14 NETWORK. VOICE AND DATA COMMUNICATIONS, INC. AND ASSOCIATED Second Amended Complaint TELEPHONE DESIGN, a Division of Network Voice and Data Communications, Inc. and former New York Corporation, - against- MANHATTAN TELEPHONE CORPORATION, d/b/a Metropolitan Telecommunications and MetTel, Plaintiffs, Defendant J( Plaintiffs Network Teleco Services, Inc., Network Voice and Data Communications, Inc. and Associated Telephone Design, by its attorneys, Yeskoo Hogan & Tamlyn, LLP, allege as follows: 1. Plaintiff Network Teleco Services, Inc. is a New York corporation with its principal place ofbusiness at th Avenue, 16 tb Floor, New York, NY It sells telecommunications services. 2. Plaintiff Network Voice and Data Communications, Inc. is a Delaware corporation registered to do business in New York with its principal place ofbusiness at 494 8th Avenue, 16th Floor, New York, NY It sells telephone equipment and 1

5 telecommunications services. 3. Associated Telephone Design is a division of Network Voice and Data Communications, Inc. Associated sells and services telephone systems and telecommunications services as a division ofnetwork Voice and Data Communications, Inc. Associated was formerly a New York corporation known as Associated Telephone Design Inc. However, in or about 2005 it became a division ofnetwork and has since given up its corporate charter. 4. Defendant Manhattan Telephone Corporation, d/b/a Metropolitan Telecommunications and MetTel ("MetTer'), is a Delaware corporation with its principal place of business at 55 Water Street, 32d Floor, New York, NY. MetTel sells telecommunications services. 5. On or about September 9, 2002 Associated Telephone Design Inc. agreed to become a sales agent for MetTel pursuant to a written Sales Agency Agreement (the "Agreement"). A copy of the Agreement is annexed hereto as Exhibit I. 6. In or about 2005 Associated requested that the contract be assigned to Network Voice and Data Communications, Inc. Mettel approved this request, and began accepting customers from Network Voice and Data Communications, Inc. and paying commissions to Network Voice and Data Communications, Inc. pursuant to the Agreement. 7. In or about 2012 Network Voice and Data Communications, Inc. requested that the contract be assigned to Network Teleco Services, Inc. Mettel approved this request, and began accepting customers from Network Teleco Services, Inc. and paying commissions to Network Teleco Services, Inc. pursuant to the Agreement 8. Under the Agreement, MetTel agreed to pay its sales agent commissions based upon purchases by the sales agent's customers from MetTel. 2

6 9. The Agreement provides that MetTel can terminate the contract without cause. However, the Agreement further provides that the sales agent will continue to receive commissions from MetTel"as long as [sales agent's] customer receives service from MetTel or any affiliate or assignee of MetTel." 10. MetTel tenninated the Agreement without cause by letter dated June 16,2014. A copy of the notice is annexed hereto as Exhibit 2. II. Upon receiving the letter, a Network representative called MetTel to confrnn that it would continue to receive commissions. However, the MetTel representative told it that it would not continue to receive commissions. 12. On June 24,2014, Network asked MetTe! for written assurance that it would continue to pay commissions. A copy ofthe letter is annexed hereto as Exhibit 3. MetTel has not responded and has stopped paying plaintiffs commissions. 13. The value ofthe commissions that plaintiffs are entitled to from MetTel exceeds $200,000. COUNT I (Breach of Agree;men!} 14. Plaintiffs repeat paragraphs I through 13 ofthe Complaint. 15. Plaintiffs have complied with all conditions precedent of the Agreement. 16. Defendant has breached the Agreement by failing to pay plaintiffs the commissions to which they are entitled under the Agreement. 17. As a result of defendant's breach ofthe Agreement, plaintiffs have been damaged by not less than $200,

7 COUNT TWO (Quantum MeruiO 18. Plaintiffs repeat paragraphs 1 through 17 of the complaint. 19. Plaintiffs performed sales agency services for MetTel in good faith. 20. MetTel accepted those services by accepting customers forwarded to it by plaintiffs. 21. Plaintiffs reasonably accepted, and MetTel promised, compensation for those services. 22. The reasonable value of the service preformed for MetTel which remains unpaid exceeds $200,000. COUNT THREE (Unjust Enrichment) 23. Plaintiffs paragraphs 1 through 22 of the complaint. 24. Defendant was enriched by deriving substantial revenue from the customers which plaintiffs sold MetTel services to. 25. It is against equity and good conscience to permit the defendant to retain the benefit of those customers without paying commissions to plaintiffs. 26. Plaintiffs should be awarded not less than $200,000. COUNT FOUR (Promissory Estoppel) 27. Plaintiffs repeat paragraphs I through 26 ofthe complaint. 28. In response to plaintiffs' request, defendant MetTel orally told Associated and Network Voice and Data Communications, Inc. that it had approved its request to assign the contract from Associated Telephone Design Inc. to Network Voice and Data Communications, Inc. and began accepting customers from Network and paying commissions to Network. In 4

8 response to Network Voice and Data Communications Inc. 's request, MetTel orally told Network that it had approved its request to assign the contract to Network Teleco Services, Inc. and began accepting customers from Network Teleco Services, Inc. and paying commissions to Network Teleco Services, Inc. 29. Plaintiffs relied upon MetTel's statement that it would assign the contract to Network Voice and Data Communications, Inc. in winding up the affairs of Associated Telephone Design Inc. and ending its corporate existence, continuing to sell MetTel services, and continuing to submit orders to be fulfilled by MetTel. Plaintiffs similarly relied upon MetTel's statement that it would assign the contract from Network Voice and Data Communications, Inc. to Network Telecom Services, Inc. in continuing to sell MetTel services and continuing to submit orders to be fulfilled by MetTel. 30. As a result, MetTel is estopped from maintaining that it in fact did not assign the contract to Network Voice and Data Communications, Inc. and then to Network Teleco Services, Inc. WHEREFORE, plaintiffs demands judgment against defendant as follows: (i) (ii) awarding plaintiffs monetary damages of not less than $200,000; and awarding plaintiffs interest, costs and such further relief as the Court deems just and proper. Dated: October 22, 2014 YESKOOHOGAN & TAMLYN, LLP Attorneys for Plaintiffs 909 Third Avenue, 28 th Floor New York, New York By: ~~~~~TL

9 IFILED: NEW YORK COUNTY CLERK 03/25/ :02 pij INDEX NO /2014 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/25/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK _ )( ASSOCIATED TELEPHONE DESIGNS, a division of Network Voice and Data Telecommunications, Inc., Index No /14 -against- Plaintiff, ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS MANHATTAN TELECOMMUNICATIONS CORPORATION, d/b/a Metropolitan Telecommunications and MetTel, Defendant )( Defendant MANHATTAN TELECOMMUNICATIONS CORPORATION, d/b/a Metropolitan Telecommunications and MetTel ("MetTel"), by and through it undersigned attorneys of record, avers as follows for its Answer to the Second Amp".J d Complaint and Counterclaims. 1. MetTel is w'+j.. the truth of the allegations MetTel is with truth ofthe allegations of th. \'" 3. MetTel is without th ofthe allegations ofthis [. 4. Admitted.

10 5. MetTeI states that the document referenced in this paragraph and annexed to the Second Amended Complaint speaks for itself. 6. Denied, except admitted that certain commissions were paid. 7. Denied, except admitted that certain commissions were paid. 8. MetTel states that the document referenced in this paragraph and annexed to the Second Amended Complaint speaks for itself. 9. MetTeI states that the document referenced in this paragraph and annexed to the Second Amended Complaint speaks for itself. 10. MetTel states that the document referenced in this paragraph and annexed to the Second Amended Complaint speaks for itself. 11. MetTel denies the allegations ofthis paragraph. 12. MetTel states that the document referenced in this paragraph and annexed to the Second Amended Complaint speaks for itself. 13. MetTel denies the allegations ofthis paragraph. 14. MetTel repeats and reasserts the responses set forth in the preceding paragraphs as though fully set forth herein. 15. Denied. 16. Denied. 17. Denied. 18. MetTel repeats and reasserts the responses set forth in the preceding paragraphs as though fully set forth herein. 19. Denied. 20. Denied. 2

11 21. Denied. 22. Denied. 23. MetTel repeats and reasserts the responses set forth in the preceding paragraphs as though fully set forth herein. 24. Denied. 25. Denied. 26. Denied. 27. MetTe I repeats and reasserts the responses set forth in the preceding paragraphs as though fully set forth herein. 28. Denied, except that MetTel paid certain commissions. 29. Defendants are without infonnation sufficient to fonn a belief as to the truth of falsity ofthe allegations ofthis paragraph and on that basis denies them. 30. Denied. AFFIRMATIVE DEFENSES 1. The Second Amended Complaint fails to state a claim upon which relief can be granted; 2. Plaintiffs' claims are barred in whole or in part by their lack of standing. 3. Plaintiffs' claims are barred in whole or in part by the doctrine of failure ofconsideration. 4. Plaintiffs' claims are barred in whole or in part by reason of their prior material breaches. 5. Plaintiffs' claims are barred in whole or in part by the doctrines ofwaiver and estoppel. 6. Plaintiffs' claims are barred in whole or in part by the failure ofconditions precedent. 7. Plaintiffs' claims are barred in whole or in part by the doctrine of fraud in the inducement of contract. 3

12 8. Plaintiffs' claims are barred in whole or in part by the doctrine ofjus tertii. PRAYER FOR RELIEF-COMPLAINT WHEREFORE, MetTel prays for judgment in its favor and against the Plaintiff on its Second Amended Compliant as follows: 1. That Plaintiff take nothing by its Second Amended Complaint; ii. That MetTe1 be awarded its costs, expenses and reasonable attorneys fees incurred in defending this action; iii. That the Court award such other and further relief as to it appears just and proper. COUNTERCLAIMS As and for counterclaims, MetTel alleges as follows: 1. On about September 9,2002, MetTe1 entered into a contract with a company represented in that contract as "Associated Telephone Designs, Inc." (the "Contract"). 2. The Contract is a valid and binding agreement. 3. The entity that is MetTe1's counter-party under the Contract, by the express terms ofthe Contract, made the following representations: a. That it had been assigned federal employer identification number ; b. That it was a corporation; c. That it was duly organized and in good standing under the laws ofthe jurisdiction in which it was formed; d. That it had the power and authority to execute, deliver and perform the Contract; 4

13 4. The entity that is MetTel's counter-party under the Contract, by the express terms ofthe Contract, undertook the following obligations: a. To use its best efforts to market MetTel's services to customers; b. To conduct its dealings with members ofthe public using the highest standards of honesty, integrity and fair dealing; c. To be licensed; d. To be in compliance with all laws, statutes, and regulations; e. To refrain from assigning the Contract without the express written consent of MetTel; f. To refrain from initiating contact with MetTel customers whom said counter-party obtained for MetTel during the term ofthe Contract for the purposes ofsoliciting or inducing them to terminate their business relationship with MetTel or to purchase local telecommunications services other than those provided by MetTel; g. That it shall refrain from disclosing, and shall return to MetTel, all proprietary information in its possession or under its control and owned by MetTel or its customers; 5. On information and belief, Plaintiffs in this action are not MetTel's counter-party on the Contract. 6. However, alleging in the alternative and to the extent Plaintiffs, or any ofthem, is ever adjudicated to be the entity that is MetTel's counter-party on the Contract, MetTel states that such Plaintiff has breached the Contract by: a. Making representation set forth above in paragraph 3a, which representation Plaintiff knew was materially false; 5

14 b. Making representation set forth above in paragraph 3b, which representation Plaintiff knew was materially false; c. Making representation set forth above in paragraph 3c, which representation Plaintiff knew was materially false; d. Making representation set forth above in paragraph 3d, which representation Plaintiff knew was materially false; e. Violating the obligation set forth above in paragraph 4a; f. Violating the obligation set forth above in paragraph 4b; g. Violating the obligation set forth above in paragraph 4c; h. Violating the obligation set forth above in paragraph 4d; i. Violating the obligation set forth above in paragraph 4e; j. Violating the obligation set forth above in paragraph 4f; k. Violating the obligation set forth above in paragraph 4g; 1. Failing to indemnify Defendant for the losses it sustained by reason of such breaches and false representations; 7. Plaintiffs' breaches ofcontract set forth above were material breaches. 8. As the direct and proximate result of the material breaches ofthe Contract set forth above, MetTel has suffered actual damages in an amount to be proved at trial and in excess of the jurisdictional minimum ofthis Court. follows: PRAYERFORRELmF-COUNTERCLU~ WHEREFORE, MetTel prays this Court for judgment in its favor on its counterclaims as 6

15 I. For an award ofcompensatory damages in an amount to be proved at trial; ii. iii. For preliminary and permanent injunctive relief against future violations; For an award ofits costs, expenses and attorneys fees incurred in the prosecution ofits counterclaims; iv. For such other and further relief as to this Court appears just and proper Dated: New York, New York March 25, 2015 To: By:_~~~ PE ERJAKAB The Wool 233 Broadw Suite 930 New York, NY (212) Ph Attorneys for Defendant and Counterclaimant Yeskoo Hogan and Tamlyn, LLP 909 Third Ave. 28 th Floor New York, NY