FILED: NEW YORK COUNTY CLERK 05/18/ :14 AM INDEX NO /2016 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/18/2016 EXHIBIT C

Transcription

1 FILED: NEW YORK COUNTY CLERK 05/18/ :14 AM INDEX NO /2016 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/18/2016 EXHIBIT C

2 FILED: NEW YORK COUNTY CLERK 04/03/ :54 PM INDEX NO /2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/03/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x JOHN DEWITT, PATRICIA DEWITT, PETER ELARDE, BARBARA ELLEMAN, GLORIA HOW ARD, IDA OWENS, GILBERT SELOCHAN, TERESA SELOCHAN and RICHARD SHERMAN, Index No.: Plaintiffs, SUMMONS & COMPLAINT -against- THE MANHA TT AN CLUB TIMESHARE ASSOCIATION, INC, T. PARK CENTRAL, LLC, 0. PARK CENTRAL, LLC, THE MANHATTAN CLUB MARKETING GROUP, LLC, NEW YORK URBAN OWNERSHIP MANAGEMENT, LLC, DOES 1-50 (fictitious names), Defendants, x To the Named Defendant Above: PLEASE TAKE NOTICE THAT YOU ARE HEREBY SUMMONED to answer the Complaint of the Plaintiff herein and to serve a copy of your Answer on the Plaintiff at the address indicated below within 20 days after the service of this Summons (not counting the day of service itself), or within 30 days after service is complete if the Summons is not delivered personally to you within the State of New York. YOU ARE HEREBY NOTIFIED THAT should you fail to answer, a judgment wi ll be entered against you by default for the relief demanded in the complaint. VENUE: Plaintiff designates NEW YORK COUNTY as the place of trial. The basis of this designation is that the Defendant's place of business and the events and/or wrongful conduct that give rise to the claim alleged herein occurred in the State of New York and in the County of NEW YORK. Dated: April 3, 2016 White Plains, New York Michael J. Daher, Esq Cordell Court, Suite 210 El Cajon, CA T: Attorney for the Plaintiff Page 1of27 1 of 27

3 TO: THE MANHATTAN CLUB TIMESHARE ASSOCIATION, INC. DOS Process (Address to which DOS will mail process if accepted on behalfofthe entity) ALLEN STARR, GREENSTIEN STARR GERSTEIN & RINALDI, LLP 57 WEST 38TH STREET, 9TH FLOOR NEW YORK, NEW YORK, Registered Agent ALLEN STARR, GREE STIEN STARR GERSTEIN & RI 57 WEST 38TH STREET, 9TH FLOOR NEW YORK, NEW YORK, I 0018 ALDI, LLP T. PARK CENTRAL, LLC DOS Process (Address to which DOS will mail process if accepted on behalfofthe entity) T. PARK CENTRAL LLC CIO THE MANHATTAN CLUB 200 WEST 56TH STREET NEW YORK, NEW YORK, I 0019 Registered Agent ALLAN STARR, ESQ., STARR ASSOCIATES LLP 245 FIFTH A VENUE, SUITE 1102 NEW YORK, NEW YORK, PARK CENTRAL, LLC DOS Process (Address to which DOS will mail process if accepted on behalfofthe entity) 0. PARK CENTRAL LLC CIO THE MANHATTAN CLUB 200 WEST 56TH STREET NEW YORK, NEW YORK, I 0019 Registered Agent ALLAN STARR, ESQ., STARR ASSOCIATES LLP 245 FIFTH A VENUE, SUITE 1102 NEW YORK, NEW YORK, THE MANHATTAN CLUB MARKETING GROUP, LLC DOS Process (Address to which DOS will mail process if accepted on behalfofthe entity) THE MANHATTAN CLUB 200 WEST 56 STREET ATTN: D LUCAS NEW YORK, NEW YORK, I 0019 Registered Agent ALLAN STARR, ESQ., STARR ASSOCIATES LLP 245 FIFTH AVENUE, SUITE 1102 NEW YORK, NEW YORK, I 0016 Page 2 of 27 2 of 27

4 NEW YORK URBAN OWNERSHIP MANAGEMENT, LLC DOS Process (Address to which DOS will mail process if accepted on behalfofthe entity) THE MANHATTAN CLUB 200 WEST 56TH STREET ATTN: D LUCAS NEW YORK, NEW YORK, Registered Agent ALLAN ST ARR, ESQ., ST ARR ASSOCIATES LLP 245 FIFTH A VENUE, SUITE 1102 NEW YORK, NEW YORK, DOES 1-50 (fictitious names) Addresses not yet ascertained. Page 3 of 27 3 of 27

5 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No: x JOHN DEWITT, PATRICIA DEWITT, PETER ELARDE, JR, BARBARA ELLEMAN, GLORIA HOW ARD, IDA OWENS, GILBERT SELOCHAN, TERESA SELOCHAN and RICHARD SHERMAN, Plaintiffs, COMPLAINT -against- THE MANHATTAN CLUB TIMESHARE ASSOCIATION, INC, T. PARK CENTRAL, LLC, 0. PARK CENTRAL, LLC, THE MANHATTAN CLUB MARKETING GROUP, LLC, NEW YORK URBAN OWNERSHIP MANAGEMENT, LLC, and DOES 1-50 (fictitious names), Defendants x TO THE SUPREME COURT OF THE STATE OF NEW YORK, NEW YORK COUNTY Plaintiffs, JOHN DEWITT, PATRICIA DEWITT, PETER ELARDE, BARBARA ELLEMAN, GLORIA HOW ARD, IDA OWENS, GILBERT SELOCHAN AND TERESA SELOCHAN, AND RICHARD SHERMAN (collectively "The Plaintiffs"), by and through their attorney, Michael Daher, Esq. of 125 Old Lake St., West Harrison, N.Y , acting as local counsel for U.S. Consumer Attorneys, P.A. of 1870 Cordell Court, Suite 210, El Cajon, CA 92020, as and for their Complaint against the Defendant(s), THE MANHATTAN CLUB TIMESHARE ASSOCIATION, INC., T. PARK CENTRAL, LLC, 0. PARK CENTRAL, LLC, THE MANHATTAN CLUB MARKETING GROUP, LLC, NEW YORK URBAN OWNERSHIP MANAGEMENT, LLC, and DOES 1-50 (collectively "The Defendants"), hereby allege as follows: Page 4 of 27 4 of 27

6 JURISDICTION AND VENUE 1. This Court has personal jurisdiction over the Parties on the grounds that the Defendants' wrongful conduct alleged herein occurred in the State of New York and in the County of NEW YORK. 2. Venue is proper pursuant to CPLR 503 (a) on the grounds that the Defendants' place of business and the events and/or wrongful conduct that give rise to the claim alleged herein occurred in the State of New York and in the County of NEW YORK. THE PARTIES 3. Plaintiffs John DeWitt and Patricia DeWitt (hereinafter "DeWitt"), are individuals residing in Lakewood Ranch, Florida, and have rights, title and/or interests in a timeshare and/or timeshare points for the right to use a timeshare or timeshare properties owned by Defendant. 4. Plaintiff, Peter Elarde, Jr. (hereinafter "Elarde"), is an individual residing in Long Beach, New York, and has rights, title and/or interests in a timeshare and/or timeshare points for the right to use a timeshare or timeshare properties owned by Defendant. 5. Plaintiff, Barbara Elleman (hereinafter "Elleman"), is an individual residing in Amherst, Massachusetts, and has rights, title and/or interests in a timeshare and/or timeshare points for the right to use a timeshare or timeshare properties owned by Defendant. 6. Plaintiff, Gloria Howard (hereinafter "Howard"), is an individual residing in Brooklyn, Connecticut, and has rights, title and/or interests in a timeshare and/or timeshare points for the right to use a timeshare or timeshare properties owned by Defendant. 7. Plaintiff, Ida Owens (hereinafter "Owens"), is an individual residing in Rockville, Maryland, and has rights, title and/or interests in a timeshare and/or timeshare points for the right to use a timeshare or timeshare properties owned by Defendant. Page 5 of 27 5 of 27

7 8. Plaintiffs, Gilbert Selochan and Teresa Selochan (hereinafter "Selochan") are individuals who reside in Ellington, Connecticut, and have rights, title and/or interests in a timeshare and/or timeshare points for the right to use a timeshare or timeshare properties owned by Defendant. 9. Plaintiff, Richard Sherman (hereinafter "Sherman") is an individual who resides in Plainview, New York, and has rights, title and/or interests in a timeshare and/or timeshare points for the right to use a timeshare or timeshare properties owned by Defendant. 10. All plaintiffs shall be collectively referred to as "Plaintiffs". 11. Defendant, Manhattan Club Timeshare Association, Inc. (hereinafter "Manhattan Club") is corporation, registered in the state of New York, and upon information and belief, operates a timeshare association from its primary location, which is located at 200 West Street, New York, NY 10019, in which The Plaintiffs have rights, title and/or interest in a timeshare and/or timeshare points for the right to use a timeshare or timeshare properties owned by Manhattan Club. 12. Defendant T. Park Central, LLC (hereinafter "T. Park") is a corporation, registered in the State of New York, and upon information and belief is the granter of ownership interests in Manhattan Club located at 200 West 56 1 h Street, ew York, NY to the Plaintiffs in this matter. 13. Defendant 0. Park Central, LLC (hereinafter "O. Park") is a corporation, registered in the State of New York, and upon information and belief acts as an alter ego oft. Park and Manhattan Club. 14. Defendant The Manhattan Club Marketing Group, LLC (hereinafter "Club Marketing") is a corporation, registered in the State of New York, and upon information and belief acts as an alter ego of Manhattan Club. Page 6 of 27 6 of 27

8 15. Defendant New York Urban Ownership Management, LLC (hereinafter "Management") is a corporation, registered in the State of ew York, and upon information and belief acts as an alter ego of Manhattan Club. 16. Defendants are the alter ego of each other and are personally liable and all of their businesses and associated businesses are jointly and severally liable based on the following: (1) the businesses and sham entities used to hold and default on deeds are grossly undercapitalized; (2) solely owned; (3) alter egos; ( 4) use the same office or business location; (5) employment of the same employees; (6) employment of the same attorneys; (7) use the businesses as an instrumentality or business conduit for an individual or another business; (8) divert assets or funds to the detriment of creditors and/or manipulate assets; (9) use the businesses as a subterfuge in illegal transactions; (10) create or form new businesses to transfer liability of another person or entity (especially in the creation or use of sham transactions); and, (11) fail to maintain arm' s length relationships among related entities. All companies are alter egos used as a subterfuge in illegal activities and operate out of the same brick and mortar addresses and/or buildings. When one business is flagged, shut down, sanctioned or sued, other entities are created to continue status quo. All of Defendants' companies essentially perform the same or similar functions related to their timeshare scheme. Each of Defendants is undercapitalized and there is no sufficient capital to operate the business standing alone from any other entity. Defendants are floating loans and/or infusing monies to cover basic operating expenses, failed to invest any money and/or have been reduced to a mere shell by stripping assets. Capital flows and transactions from one Defendant to the other Defendants and between themselves are commingled among said Defendants' alter egos in order to cause confusion and to evade responsibility. Defendants often use the same facility, bank accounts, and/or business operations, employees, and agents/attorneys. Defendants are closely-held. Page 7 of 27 7 of 27

9 The boards of directors and officers are identical or very similar, and they fail to uphold corporate formalities. An injustice will result if the veil is not pierced through a finding of alter ego liability against these Defendants and if the corporate fiction is allowed to remain. Otherwise, Plaintiffs will not be fully compensated because the Defendants failed to treat themselves as separate entities. 17. Plaintiffs are informed and believe, and thereon allege, that the true names and capacities of the Defendants sued herein as DOES 1-50 are unknown to Plaintiffs who therefore sue said DOE Defendants by their fictitious names. Plaintiffs will request leave of the Court to amend this Complaint to set forth DOE Defendants' true names and capacities when the same have been ascertained. Plaintiff are informed and believe, and thereon allege, that each of the fictitiously named Defendants is responsible in some manner for the occurrences and damages herein alleged, and that Plaintiffs' damages as herein alleged were proximately caused in whole and/or in part by said DOE Defendants. Said DOE Defendants, and each of them, were acting as the agents, servants and/or employees of each of the other Defendants and each of them and that they were acting within the full course and scope of their agency and/or employment with full knowledge, consent, permission and ratification, either express or implied, of each of the other Defendants in performing the acts alleged in this Complaint. FACTUAL ALLEGATIONS 18. Plaintiffs hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 17 of this Complaint as though full y set forth herein. 19. Upon information and belief, Manhattan Club develops, owns, markets, sells, operates and manages vacation-type ownership interests and provides consumer financing in the State of New York, within the jurisdiction of this court, through the brand "The Manhattan Club". Page 8 of 27 8 of 27

10 20. Manhattan Club operates a timeshare plan in which Plaintiffs have all purchased an interest m. 21. Upon information and belief, Defendants T. Park, 0. Park, Club Marketing, and Management, are alter egos of Manhattan Club, and are involved in granting ownership interests in the same, as well as misrepresenting material facts to potential and current owners of timeshare interests at Manhattan Club. 22. On or about July 15, 1998, Plaintiff De Witt, after several misrepresentations by Defendants' sales representatives, signed an agreement to purchase a deeded timeshare interest in real property from Defendants for a sum in excess of $14, On or about March 15, 1999, PlaintiffElarde, after several misrepresentations by Defendants' sales representatives, signed an agreement to purchase a deeded timeshare interest in real property from Defendants for a sum in excess of $21, On or about December 18, 1998 and May 7, 1999, Plaintiff Elleman, after several misrepresentations by Defendants' sales representatives, signed an agreements to purchase deeded timeshare interests in real property from Defendants for a sum in excess of $39, On or about August 21, 2003, Plaintiff Howard, after several misrepresentations by Defendants' sales representatives, signed an agreement to purchase a deeded timeshare interest in real property from Defendants for a sum in excess of $27, On or about July 19, 1997, Plaintiff Owens, after several misrepresentations by Defendants' sales representatives, signed an agreement to purchase a deeded timeshare interest in real property from Defendants for a sum in excess of $17, Page 9 of 27 9 of 27

11 27. On or about July 27, 2008, Plaintiff Selochan, after several misrepresentations by Defendants' sales representatives, signed an agreement to purchase a deeded timeshare interest in real property from Defendants for a sum in excess of $14, On or about May 16, 2000, Richard Sherman, after several misrepresentations by Defendants' sales representatives, signed an agreement to purchase a deeded timeshare interest in real property from Defendants for a sum in excess of $15, In 2015, Plaintiffs herein obtained counsel on their behalf to terminate Plaintiffs' timeshares and have Defendants immediately cease and desist from requests for payments and/or any efforts to collect any monies from Plaintiffs, and to have Defendants direct all further communications regarding Plaintiffs to Plaintiffs' counsel, and to have Defendants refrain from contacting our Plaintiffs for any reason. Plaintiffs' counsel sent numerous letters to Defendant making these requests on behalf of Plaintiffs. 30. However, Plaintiffs and their counsel' s efforts were ignored by Defendants. ot only did Defendants refuse to respond and/or cooperate with Plaintiffs, but Defendants continued communicating directly with Plaintiffs. 31. Upon information and belief, Defendants are in the business of overselling and overbooking its timeshare properties. This results in Plaintiffs inability to utilize its timeshare, despite having been promised allotted time for its use. 32. Defendants, through their misrepresentations, made promises to Plaintiffs that do not exist and/or that Defendants are unable to fulfill. With respect to utilization of timeshare locations, the average consumer is able to find the same or better deals on or other internet sites without paying thousands of dollars to Defendants for the same. Page 10 of of 27

12 33. Unlike the general public, Plaintiffs and other timeshare purchasers cannot make reservations because Defendants over-books and oversells its timeshares. As such, Plaintiffs are unable to book promised reservations or reservations are cancelled at promised rates. 34. Whenever Plaintiffs tried to use their timeshares, Plaintiffs were told that they were unavailable and to book further ahead of time, in some cases, in excess of one year ahead of time. Furthermore, when Plaintiffs attempted to book usage of the timeshare, Defendants demanded additional sums of money to utilize the same and/or were unresponsive, uncooperative and rude. 35. Defendants misrepresented to Plaintiffs that this would be an investment for Plaintiffs, with significant appreciation of value and the ability to re-sell at any time. Furthermore, Plaintiffs were told that if they are unable to find a buyer, that the Defendants would repurchase the timeshare. 36. Defendants failed to inform Plaintiffs that there would be a lifetime contract associated with the purchase of the timeshare, where the Plaintiffs would be responsible for paying everincreasing fees, assessment and other charges. 37. Defendants deprived Plaintiffs of the benefits owed, which has resulted in damages to the Plaintiff. 38. At all relevant times referenced herein, Defendants prepared a "pay now, terms later,'' or rolling standard-form contracts, in which buyers are not able to read the standard terms until after they have purchased the timeshare. 39. Defendant' s scheme of overselling and overbooking its timeshare association has caused and is continuing to cause damages to Plaintiffs and other timeshare association members not mentioned herein. COUNT - I: FRAUD Pa ge 11 of of 27

13 40. Plaintiffs hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 39 of this Complaint as though fully set forth herein. PLAINTIFF DEWITT 41. On or about July 15, 1998, Defendants made misrepresentations of material fact. 42. Defendant had knowledge of the falsity of its statements and intended for Plaintiff De Witt to rely on the misrepresentations. 43. Defendants' misrepresentations caused substantial damages to Plaintiff Dewitt in that the misrepresentations cost Plaintiff a significant amount of money to purchase the timeshare, and continues to cost the Plaintiff significant amounts of money in fees, assessments and expenses for a timeshare that the Plaintiff is unable to use. 44. Defendants misrepresented that: a. Defendants would provide Plaintiff with a timeshare that is a better vacation deal than if Plaintiff were to book as a non timeshare member or better than what is available to the general public; b. Plaintiff would be able to make reservations with Defendants and that Defendants would always make themselves available and cooperate with Plaintiff so that Plaintiff can use their timeshare; c. Plaintiff would be able to use their timeshare; d. Defendants would comply with Plaintiffs reasonable requests for booking usage of their timeshare, and that Defendants would not request and/or be entitled to receive more money to perform their obligations; e. Defendants would be responsive, cooperative and polite; f. Plaintiffs timeshare with Defendants would be honored; Page 12 of of 27

14 g. Plaintiffs timeshare with Defendants would be an investment; h. Plaintiff would not be involved in a lifetime contract commitment; i. Plaintiff would not be required to pay for their timeshare for the rest of their lives; J. Plaintiff would be able to pass the timeshare to their heirs, successors, or assigns; k. Plaintiffs would not be required to pay ever increasing fees, assessments and other expenses associated with the timeshare. PLAINTIFF ELARDE 45. On or about March 15, 1999, Defendants made misrepresentations of material fact to Plaintiff Elarde. 46. Defendants had knowledge of the falsity of its statements and intended for PlaintiffElarde to rely on the misrepresentations. 47. Defendants' misrepresentations caused substantial damages to Plaintiff Elarde in that the misrepresentations cost Plaintiff a significant amount of money to purchase the timeshare, and continues to cost the Plaintiff significant amounts of money in fees, assessments and expenses for a timeshare that the Plaintiff is unable to use. 48. Defendants misrepresented that: a. Defendants would provide Plaintiff with a timeshare that is a better vacation deal than if Plaintiff were to book as a non timeshare member or better than what is available to the general public; b. Plaintiff would be able to make reservations with Defendants and that Defendants would always make themselves available and cooperate with Plaintiff so that Plaintiff can use their timeshare; c. Plaintiff would be able to use their timeshare; Page 13 of of 27

15 d. Defendants would comply with Plaintiff's reasonable requests for booking usage of their timeshare, and that Defendants would not request and/or be entitled to receive more money to perform their obligations; e. Defendants would be responsive, cooperative and polite; f. Plaintiff's timeshare with Defendants would be honored; g. Plaintiff's timeshare with Defendants would be an investment; h. Plaintiff would not be involved in a lifetime contract commitment; 1. Plaintiff would not be required to pay for their timeshare for the rest of their lives; J. Plaintiff would be able to pass the timeshare to their heirs, successors, or assigns; k. Plaintiffs would not be required to pay ever increasing fees, assessments and other expenses associated with the timeshare. PLAINTIFF ELLEMAN 49. On or about December 19, 1998 and May 7, 1999, Defendants made misrepresentations of material fact to Plaintiff Elleman. 50. Defendants had knowledge of the falsity of its statements and intended for Plaintiff Elleman to rely on the misrepresentations. 51. Defendants' misrepresentations caused substantial damages to Plaintiff Elleman in that the misrepresentations cost Plaintiff a significant amount of money to purchase the timeshare, and continues to cost the Plaintiff significant amounts of money in fees, assessments and expenses for a timeshare that the Plaintiff is unable to use. 52. Defendants misrepresented that: Page 14 of of 27

16 a. Defendants would provide Plaintiff with a timeshare that is a better vacation deal than if Plaintiff were to book as a non timeshare member or better than what is available to the general public; b. Plaintiff would be able to make reservations with Defendants and that Defendants would always make themselves available and cooperate with Plaintiff so that Plaintiff can use their timeshare; c. Plaintiff would be able to use their timeshare; d. Defendants would comply with Plaintiffs reasonable requests for booking usage of their timeshare, and that Defendants would not request and/or be entitled to receive more money to perform their obligations; e. Defendants would be responsive, cooperative and polite; f. Plaintiffs timeshare with Defendants would be honored; g. Plaintiffs timeshare with Defendants would be an investment; h. Plaintiff would not be involved in a lifetime contract commitment; 1. Plaintiff would not be required to pay for their timeshare for the rest of their lives; J. Plaintiff would be able to pass the timeshare to their heirs, successors, or assigns; 53. Plaintiffs would not be required to pay ever increasing fees, assessments and other expenses associated with the timeshare. PLAINTIFF HOW ARD 54. On or about August 21, 2003, Defendants made misrepresentations of material fact to Plaintiff Howard. 55. Defendants had knowledge of the falsity of its statements and intended for Plaintiff Howard to rely on the misrepresentations. Page 15 of of 27

17 56. Defendants' misrepresentations caused substantial damages to Plaintiff Howard in that the misrepresentations cost Plaintiff a significant amount of money to purchase the timeshare, and continues to cost the Plaintiff significant amounts of money in fees, assessments and expenses for a timeshare that the Plaintiff is unable to use. 57. Defendants misrepresented that: a. Defendants would provide Plaintiff with a timeshare that is a better vacation deal than if Plaintiff were to book as a non timeshare member or better than what is available to the general public; b. Plaintiff would be able to make reservations with Defendants and that Defendants would always make themselves available and cooperate with Plaintiff so that Plaintiff can use their timeshare; c. Plaintiff would be able to use their timeshare; d. Defendants would comply with Plaintiffs reasonable requests for booking usage of their timeshare, and that Defendants would not request and/or be entitled to receive more money to perform their obligations; e. Defendants would be responsive, cooperative and polite; f. Plaintiffs timeshare with Defendants would be honored; g. Plaintiffs timeshare with Defendants would be an investment; h. Plaintiff would not be involved in a lifetime contract commitment; 1. Plaintiff would not be required to pay for their timeshare for the rest of their lives; J. Plaintiff would be able to pass the timeshare to their heirs, successors, or assigns; 58. Plaintiffs would not be required to pay ever increasing fees, assessments and other expenses associated with the timeshare. PLAINTIFF OWENS Page 16 of of 27

18 59. On or about July 19, 1997, Defendants made misrepresentations of material fact to Plaintiff Owens. 60. Defendants had knowledge of the falsity of its statements and intended for Plaintiff Owens to rely on the misrepresentations. 61. Defendants' misrepresentations caused substantial damages to Plaintiff Owens in that the misrepresentations cost Plaintiff a significant amount of money to purchase the timeshare, and continues to cost the Plaintiff significant amounts of money in fees, assessments and expenses for a timeshare that the Plaintiff is unable to use. 62. Defendants misrepresented that: a. Defendants would provide Plaintiff with a timeshare that is a better vacation deal than if Plaintiff were to book as a non timeshare member or better than what is available to the general public; b. Plaintiff would be able to make reservations with Defendant and that Defendant would always make themselves available and cooperate with Plaintiff so that Plaintiff can use their timeshare; c. Plaintiff would be able to use their timeshare; d. Defendants would comply with Plaintiffs reasonable requests for booking usage of their timeshare, and that Defendants would not request and/or be entitled to receive more money to perfo1m their obligations; e. Defendants would be responsive, cooperative and polite; f. Plaintiffs timeshare with Defendants would be honored; g. Plaintiffs timeshare with Defendants would be an investment; h. Plaintiff would not be involved in a lifetime contract commitment; I. Plaintiff would not be required to pay for their timeshare for the rest of their lives; Page 17 of of 27

19 J. Plaintiff would be able to pass the timeshare to their heirs, successors, or assigns; 63. Plaintiffs would not be required to pay ever increasing fees, assessments and other expenses associated with the timeshare. PLAINTIFF SELOCHAN 64. On or about July 26, 2008, Defendants made misrepresentations of material fact to Plaintiff Selochan. 65. Defendants had knowledge of the falsity of its statements and intended for Plaintiff Selochan to rely on the misrepresentations. 66. Defendants' misrepresentations caused substantial damages to Plaintiff Selochan in that the misrepresentations cost Plaintiff a significant amount of money to purchase the timeshare, and continues to cost the Plaintiff significant amounts of money in fees, assessments and expenses for a timeshare that the Plaintiff is unable to use. 67. Defendants misrepresented that: a. Defendants would provide Plaintiff with a timeshare that is a better vacation deal than if Plaintiff were to book as a non timeshare member or better than what is available to the general public; b. Plaintiff would be able to make reservations with Defendants and that Defendants would always make themselves available and cooperate with Plaintiff so that Plaintiff can use their timeshare; c. Plaintiff would be able to use their timeshare; d. Defendants would comply with Plaintiffs reasonable requests for booking usage of their timeshare, and that Defendants would not request and/or be entitled to receive more money to perform their obligations; e. Defendants would be responsive, cooperative and polite; Page 18 of of 27

20 f. Plaintiffs timeshare with Defendants would be honored; g. Plaintiffs timeshare with Defendants would be an investment; h. Plaintiff would not be involved in a lifetime contract commitment; t. Plaintiff would not be required to pay for their timeshare for the rest of their lives; J. Plaintiff would be able to pass the timeshare to their heirs, successors, or assigns; 68. Plaintiffs would not be required to pay ever increasing fees, assessments and other expenses associated with the timeshare. PLAINTIFF RICHARD SHERMAN 69. On or about April 28, 2000, Defendants made misrepresentations of material fact. 70. Defendants had knowledge of the falsity of its statements and intended for Plaintiff Sherman to rely on the misrepresentations. 71. Defendants' misrepresentations caused substantial damages to Plaintiff Sherman in that the misrepresentations cost Plaintiff a significant amount of money to purchase the timeshare, and continues to cost the Plaintiff significant amounts of money in fees, assessments and expenses for a timeshare that the Plaintiff is unable to use. 72. Defendants misrepresented that: a. Defendants would provide Plaintiff with a timeshare that is a better vacation deal than if Plaintiff were to book as a non timeshare member or better than what is available to the general public; b. Plaintiff would be able to make reservations with Defendants and that Defendants would always make themselves available and cooperate with Plaintiff so that Plaintiff can use their timeshare; c. Plaintiff would be able to use their timeshare; Page 19 of of 27

21 d. Defendants would comply with Plaintiffs reasonable requests for booking usage of their timeshare, and that Defendants would not request and/or be entitled to receive more money to perform their obligations; e. Defendants would be responsive, cooperative and polite; f. Plaintiffs timeshare with Defendants would be honored; g. Plaintiffs timeshare with Defendants would be an investment; h. Plaintiff would not be involved in a lifetime contract commitment; i. Plaintiff would not be required to pay for their timeshare for the rest of their lives; J. Plaintiff would be able to pass the timeshare to their heirs, successors, or assigns; k. Plaintiffs would not be required to pay ever increasing fees, assessments and other "" expenses associated with the timeshare. COUNT - II - NEGLIGENT MISREPRESENT A TI ON 73. Plaintiffs hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 72 of this Complaint as though fully set forth herein. 74. The existence of a privity-like relationship existed between all Plaintiffs and Defendants. 75. This relationship imposes a duty to impart correct and accurate information upon the Plaintiffs. 76. However, the information that was provided to Plaintiffs by Defendants was incorrect and inaccurate. 77. Plaintiffs reasonably relied on this information when making their decision to purchase the timeshare and were damaged because of the same. 78. Furthermore, upon information and belief, Plaintiffs believe that when Defendants made such representation, they were made by Defendants with the intent to induce Plaintiff to spend as Page 20 of of 27

22 much time and money as possible without being duly and/or fully compensated with the anticipated consideration. 79. As a proximate result of Defendants' negligent misrepresentations, Plaintiffs have been damaged in a sum in excess of $ , according to proof at trial. 80. Upon information and belief, the unlawful acts of Defendants, their agents, servants and employees, as alleged herein, were done by Defendants intentionally, willfully, fraudulently and/or maliciously and thereby deprived Plaintiffs of property and legal rights or otherwise caused injury to Plaintiffs. Said misconduct was committed with a complete disregard for Plaintiffs' rights. Plaintiffs are by the same reason entitle to punitive damages in an amount to be proved at trial or as the court may deem just and proper. COUNT- III - BREACH OF FIDUCIARY DUTY 81. Plaintiffs hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 80 of this Complaint as though fully set forth herein. 82. Defendant was at all times relevant, fiduciaries of the Plaintiffs, and owed to the Plaintiffs a duty of honesty and loyalty, founded on the utmost trust and confidence, to the same. 83. Defendant breached its duty of loyalty and care owed to Plaintiffs, as set forth in the preceding allegations in this Complaint. 84. As a proximate result of the Defendant's breach of fiduciary duty, Plaintiffs have been damaged in a sum in excess of $500,000.00, according to proof at trial. 85. Upon information and belief, the unlawful acts of Defendant, its agents, servants and employees, as alleged herein, were done by Defendant intentionally, willfully, fraudulently and/or maliciously and thereby deprived Plaintiffs of property and legal rights or otherwise caused injury to Plaintiffs. Said misconduct was committed with a complete disregard for Page 21of27 21 of 27

23 Plaintiffs' rights. Plaintiffs are by the same reason entitle to punitive damages in an amount to be proved at trial or as the court may deem just and proper. COUNT - IV - RESCISSION 86. Plaintiffs hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 85 of this Complaint as though fully set forth herein. 87. Defendant, was at all relevant times, fraudulent in it statements and representations, of which statements were of a material nature to the Plaintiffs and which induced the Plaintiffs to sign a contract of sale for the purchase of a timeshare from the Defendant. 88. Once Plaintiffs purchased the timeshare, Defendant failed to provide the promised Consideration, in this case, a failure to provide adequate usage of the timeshare while charging exorbitant fees to maintain the same. 89. The Defendant was and continues to be unable to perform under the contracts made by and between the Plaintiffs and the Defendant, and as such the purpose of the contract is substantially defeated. 90. As such, due to the aforementioned fraud, negligent misrepresentation, and/or breach of fiduciary duty on the part of the Defendant, and/or due to the illegality, duress, menace, or undue influence, and/or due to the failure to provide consideration, and/or frustration of the purpose of the contracts made by and between Plaintiffs and Defendant, the court should rescind the contracts/agreements made between the same. 91. Plaintiffs have no adequate remedy at and intend for service of this Complaint to act as additional official notice of Plaintiffs rescission of the contracts made by and between Plaintiffs and Defendant. COUNT - V - UNFAIR BUSINESS PRACTICES Page 22 of of 27

24 92. Plaintiff hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 91 of this Complaint as though fully set forth herein. 93. In contravention ofnew York General Business Law 349, Defendant committed deceptive acts and/or practices in the normal course and conduct of its business, trade and/or commerce. 94. Within the last several years, and thereafter to the present, Defendant committed unfair business practices and acts by, among other things, falsely advertising, committing fraudulent business acts, and deceptions by hiding material facts from Plaintiffs through "pay now, terms later" techniques, or rolling, standard-form contracts, in which buyers are not able to read the standard terms until after they have purchased the timeshare, and which Plaintiffs were not allowed to change or negotiate but are presented by Defendant on a take it or leave it basis, intimidation, by among other things, failing to make proper disclosures, making misrepresentations about the nature, character and quality of the timeshare purchased, by misrepresenting that the timeshare was an investment and/or would appreciate in value over time, using a "bait and switch" technique of showing timeshare facilities which are not available in order to induce sales, failing to disclose fees and increases of the same, failing to disclose the lack of availability, by using high pressure sales techniques to induce signing the adhesion timeshare contract and then to purchase additional points which cannot be used, making fraudulent and material misrepresentations to Plaintiffs, which were reasonably relied upon by Plaintiffs, providing conflicting and false information to Plaintiffs, making material promises to Plaintiffs that Defendant could not and never intended to keep, misleading Plaintiffs about availability, or alleged exclusivity of accommodations, which Plaintiff could or would never use, misrepresenting that Defendant was properly assisting Plaintiffs, demanding and charging Plaintiffs unfair fees, charges and expenses, as well as Page 23 of of 27

25 demanding additional sums for usage of promised timeshare, and other unfair business practices subject to proofs at trial. 95. Plaintiffs are informed and believe, and thereon allege, that such conduct is common practice for Defendant and is its custom way of doing business. Moreover, such conduct described herein, and subject to proof, is and was likely to mislead the general public, senior citizens and in particular, Plaintiffs, and therefore constitutes unfair, fraudulent, and misleading practices within the meaning of New York laws. 96. Plaintiffs have suffered damages as a result of Defendant' s unfair business practices, including but not limited to, general and special damages, out of pocket costs and expenses, adverse credit consequences, unilateral new obligations imposed on Plaintiffs, attorney's fees and costs, unnecessary late charges and interest and other damages according to proof at trial. 97. Plaintiffs are additionally entitled to rescission of the timeshare contracts and restitution and/or disgorgements of all revenues, earnings, profits, compensation, and benefits that may have been obtained by Defendants as a result of such unfair business practices or acts. 98. The Plaintiffs herein have suffered pecuniary harm and have been damaged in a sum in excess of $500,000.00, according to proof at trial. Plaintiffs will continue to suffer substantial harm and injury if the Court does not rescind the subject contract(s) and issue restitutionary and injunctive relief to Plaintiffs. 99. Upon information and belief Defendant will continue to engage in unlawful business practices unless and until the Court orders the Defendant to cease and desist Upon information and belief, the unlawful acts of Defendant, its agents, servants and employees, as alleged herein, were done by Defendant intentionally, willfully, fraudulently and/or maliciously and thereby deprived Plaintiffs of property and legal rights or otherwise caused injury to Plaintiffs. Said misconduct was committed with a complete disregard for Page 24 of of 27

26 Plaintiffs' rights. Plaintiffs are by the same reason entitle to punitive damages in an amount to be proved at trial or as the court may deem just and proper. COUNT - VI - UNJUST ENRICHMENT 101. Plaintiff hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 100 of this Complaint as though fully set forth herein As a result of Defendant's wrongful conduct, Defendants have been unjustly enriched at the expense of Plaintiffs Defendant should be required to disgorge all monies, profits and gains which they have obtained or will unjustly obtain in the future at the expense of Plaintiffs. COUNT- VII - BREACH OF NEW YORK FAIR DEBT COLLECTION ACT 104. Plaintiff hereby incorporate by reference each and every allegation set forth in paragraphs 1 through 103 of this Complaint as though fully set forth herein Plaintiffs disputed any monies owed to Defendants. Plaintiffs retained present counsel to notify Defendants of the same. I 06. Notification via letters were sent to Defendants that Plaintiffs are represented by counsel and that all communications regarding Plaintiffs and Plaintiffs' disputed debts should be. directed to U.S. Consumer Attorneys, P.A.. Contact information was provided in the letters Despite being notified of representation, Defendants continued to contact and communicate with Plaintiffs regarding disputed debt The New York Fair Debt Collection Act Section 60 I (5)B prohibits communication with a consumer where the creditor knows that the consumer is represented by an attorney regarding the disputed debt. Page 25 of of 27

27 109. Defendants were aware of such representation and still continued to contact Plaintiffs regarding the disputed debt Defendants were damaged as a result of these communications and are entitled to punitive damages and legal fees. DEMAND FOR JURY TRIAL and Rules. Plaintiffs hereby demand a jury trial as provided by the New York Civil Procedure Laws PRAYER FOR RELIEF WHEREFORE, Plaintiffs prays for relief on the causes of action stated above as against Defendant as follows: a. That Plaintiffs be awarded damages in the amount of no less than $500,000.00; b. That Plaintiffs be awarded pre- and post-judgment interest until the judgment is paid in full; c. That Plaintiffs be awarded punitive damages in an amount according to proof at the time of trial; d. That Plaintiffs be awarded a rescission of each of the subject contracts/agreements; e. That Plaintiff be awarded full restitution via disgorgement of all revenues, earnings, profits, compensation and benefits that may have been obtained by Defendant as a result of unfair business practices or acts; Page 26 of of 27

28 f. That Plaintiffs be awarded a prohibitory injunction requiring Defendant to cease and desist from engaging in unlawful business practices; g. That Plaintiffs be awarded attorney' s fees, costs and disbursements; h. That Plaintiffs be awarded all other relief as the court may deem just and proper. Dated: April 3, 2016 White Plains, New York Michael J. Daher, Esq Cordell Court, Suite 210 El Cajon, CA T: Attorney for the Plaintiffs Page 27 of of 27