FILED: SUFFOLK COUNTY CLERK 09/15/2015 05:46 PM INDEX NO. 609895/2015 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/15/2015. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ----------------------------------------------------------------------------------)( Blackburn Food Corp, Brian Blackburn, and Pamela Blackburn, - against- Plaintiffs, Ardi, Inc., Armand's Restaurant, Inc., Armand LaMacchia, Individually and as Shareholder of Ardi, Inc. and as Shareholder of Armand's Restaurant, Inc., Gregory N. Ferraris, Individually and as Shareholder of Ardi, Inc. and as Administrator of the Estate of Richard J. Ferraris and as Executor of the Estate of Susan Ferraris, Richard S. Ferraris, Individually and as Shareholder Ardi, Inc., Date Purchased & Filed: Index No. Plaintiff( s) designates Suffolk County as the place of trial The basis of venue is Plaintiff's Residence SUMMONS Plaintiff(s) reside at 2716 Noyac Road Sag Harbor, New York 11903 County of Suffolk 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 Plaintiff's Attorneys within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: Garden City, New York September 15, 2015 Defendant's Address: Ardilnc. 11 Kola Drive Sag Harbor, New York 11963 Armand's Restaurant, Inc. 11 Kola Drive Sag Harbor, New York 11963 Armand LaMacchia 11 Kola Drive Sag Harbor, New York 11963 Gregory N. Ferraris Richard S. Ferraris _ ( 7.::~/'.7 /' ~--~ / /, /'.'...- /,,,.,./, / I.,.,.:,::;//f?.,.,.;;.:;;;-;...; <:---'<"'c,.,. /.- :.-: -:..e;,e...-; L //RAYMOND (A. FLECK, ESQ /';::/''FLECK, FLECK & FLECK, ESQS. '/ Attorneys for Plaintiffs Post Office Address 1205 Franklin A venue Suite# 300 Garden City, New York 11530 (516) 742-5200
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------------------------------------------)( Blackburn Food Corp, Brian Blackburn, and Pamela Blackburn, - against- Plaintiffs, VERIFIED COMPLAlNT Ardi, Inc., Armand's Restaurant, Inc., Armand LaMacchia, Individually and as Shareholder of Ardi, Inc. and as Shareholder of Armand's Restaurant, Inc., Gregory N. Ferraris, Individually and as Shareholder of Ardi, Inc. and as Administrator of the Estate of Richard J. Ferraris and as Executor of the Estate of Susan Ferraris, Richard S. Ferraris, Individually and as Shareholder Ardi, Inc., Index No.: Defendants. -------------------------------------------------------------------------)( Plaintiffs, BLACKBURN FOOD CORP, BRIAN BLACKBURN, and PAMELA BLACKBURN, by their attorneys FLECK, FLECK & FLECK, ESQS., as and for their Verified Complaint respectfully allege as follows: AS AND FOR A FIRST CAUSE OF ACTION FOR SPECIFIC PERFORMANCE FIRST: Defendant Ardi, Inc. is a domestic corporation with its principal place of business located at 1271 Noyac Road (a/k/ a 1271 Noyack Road), Town of Southampton, County of Suffolk, State of New York (hereinafter, the "premises"). SECOND: Defendant Ardi, Inc., is owned by defendant Armand LaMacchia as to a majority interest and by Gregory N. Ferraris and Richard S. Ferraris, as to a minority interest. THIRD: Defendant Armand LaMacchia resides in the County of Suf- - 1 -
folk, State of New York, and is a seventy-five percent (75%) majority shareholder and chief operating officer of defendant Ardi, Inc. FOURTH: Defendant Gregory N. Ferraris resides in the County of Suffolk, State of New York, and is a minority shareholder of defendant Ardi, Inc., successor to one-half of a twenty-five percent (25%) interest formerly owned by defendant Estate of Susan Ferraris, itself successor to such interest formerly owned by defendant Estate of Richard J. Ferraris. FIFTH: Defendant Gregory N. Ferraris was appointed Administrator of defendant Estate of Richard J. Ferraris by the Surrogate's Court of the County of Suffolk, Letters of Administration were issued to him, and he continues to act in such capacity. SIXTH: Defendant Gregory N. Ferraris was appointed Executor of defendant Estate of Susan Ferraris by the Surrogate's Court of the County of Suffolk, Let- ' ters of Administration were issued to him, and he continues to act in such capacity. SEVENTH: Defendant Richard S. Ferraris resides in the County of Suffolk, State of New York, and is a minority shareholder of defendant Ardi, Inc., successor to one-half of a twenty-five percent (25%) interest formerly owned by defendant Estate of Susan Ferraris, itself successor to such interest formerly owned by defendant Estate of Richard J. Ferraris. EIGHTH: NINTH: Defendant Ardi, Inc. is currently the owner of the premises. On and before January 15, 2012, defendant Ardi, Inc. owned -2-
and operated a commercial restaurant business at the premises. TENTH: Defendant Ardi, Inc., as Landlord, by its majority shareholder, defendant Armand LaMacchia, and plaintiffs, as Tenant, entered into a commercial Lease agreement dated January 15, 2012, with Rider and Supplemental Rider, related to the premises (collectively and hereinafter, the "Lease Agreement"), which agreement currently remains in full force and effect. ELEVENTH: At all relevant times herein defendant Armand LaMacchia represented and held himself out to plaintiffs as duly authorized to act with full and unrestricted authority on behalf of defendant Ardi, Inc., with respect to negotiation and execution of the Lease Agreement. TWELFTH: In entering into the Lease Agreement with plaintiffs, defendant Armand LaMacchia acted on behalf of defendant, Ardi, Inc., with real and apparent, implied, express, and actual authority. THIRTEENTH: Defendant, Armand'_s Restaurant, Inc., is a domestic l corporation with its principal place of business located at the premises. FOURTEENTH: On and before January 15, 2012, defendant Armand's Restaurant, Inc., owned and operated a commercial restaurant business at the premises. FIFTEENTH: Defendant, Armand LaMacchia, is the majority shareholder and chief operating officer of defendant, Armand's Restaurant, Inc. SIXTEENTH: On and before January 15, 2012, defendant, Armand LaMacchia, operated a commercial restaurant business aj the premises. - 3 -
SEVENTEENTH: Defendant Armand's Restaurant, Inc., as Seller, by its majority shareholder and officer, defendant, Armand LaMacchia, and plaintiffs, as Purchaser, entered into a Sale and Purchase Agreement dated January 15, 2012, related to. the restaurant business operated by defendant Armand's Restaurant, Inc., at the premises (hereinafter, the "Purchase Agreement"), which agreement currently remains in full force and effect. EIGHTEENTH: At all relevant times herein defendant, Armand LaMacchia, represented and held himself out to plaintiffs as duly authorized to act with full and unrestricted authority on behalf of defendant Armand's Restaurant, Inc., with respect to negotiation and execution of the Purchase Agreement. NINETEENTH: In entering into the Purchase Agreement with plain-:- tiffs, defendant, Armand LaMacchia, acted on behalf of defendant, Armand's Restaurant, with real and apparent, implied, express, and actual authority. TWENTIETH: Pursuant to paragraph 43. of the Rider to the Lease Agreement, as amended by paragraph 13. of the Supplemental Rider to the Lease Agreement, plaintiffs continue to have an exclusive option to purchase the premises (hereinafter the "purchase option") for a purchase price of Nine Hundred Seventy Five Thousand ($975,000.00) subject to the terms of the Lease Agreement, including a credit in the amount One Hundred Forty-Four Thousand Dollars ($144,000.00) for base rent actually paid for Years 1, 2, and 3, plus an additional credit equal to the total Key Money paid of One Hundred Fifty Thousand ($150,000.00) for total credit of Two Hundred -4-
Ninety Four Thousand Dollars ($294,000.00) and a net purchase price of Six Hundred Eighty One Thousand Dollars ($681,000.00). TWENTY-FIRST: Pursuant to paragraph 13. of the Supplemental Rider of the Lease Agreement, by its terms superseding paragraph 43. of the Rider to the Lease Agreement, the purchase option expires"... thirhj days prior to Year five (5)" of the Lease Agreement, which begins on March 1, 2016. TWENTY-SECOND: Plaintiffs have fulfilled all obligations imposed upon them under the Lease Agreement, are not in default thereunder, and remain entitled to purchase the premises pursuant to the unexpired purchase option contained in the Lease Agreement. TWENTY-THIRD: Plaintiffs have fulfilled all obligations imposed upon them under the Purchase Agreement, and are not in default thereunder. TWENTY-FOURTH: I quirements of the Lease Agreement as contained in paragraph 70. thereof, plaintiffs gave Notice to defendant, Ardi, Inc., of their election to exercise the unexpired purchase option via certified mail, return receipt requested, addressed to Armand's Restaurant, c/o James H. Fischer, Esq., 68 North Main Street, East Hampton, New York, 11937 (hereinafter, the "Notice"). Said notice included a copy of the check for the required downpayment, advised defendant, Ardi, Inc., that plaintiffs were ready, willing and able to immediately proceed to contract and to effectuate the transfer as contemplated in the Lease Agreement. On July 21, 2015, pursuant to the terms and re- -5-
TWENTY-FIFTH: Defendant, Ardi, Inc., has failed to respond to the Notice and has failed and refused to honor and proceed with the purchase option contained in the Lease Agreement. TWENTY-SIXTH: Defendant, Armand's Restaurant, Inc., has failed to respond to the Notice and has failed and refused to honor and proceed with purchase option contained in the Lease Agreement. TWENTY-SEVENTH: Defendant, Armand LaMacchia, has failed to respond to the Notice and has failed and refused to honor and proceed with the purchase option contained in the Lease Agreement. TWENTY-EIGHTH: Defendant, Ardi, Inc., has acted in bad faith and has breached the Lease Agreement and purchase option, damaging plaintiffs thereby. TWENTY-NINTH: Defendant, Armand's Restaurant, Inc., has acted in bad faith and has breached the Lease Agreement and purchase option, damaging plaintiffs thereby. THIRTIETH: Defendant, Armand LaMacchia, has acted in bad faith and has breached the Lease Agreement and purchase option, damaging plaintiffs thereby. THIRTY-FIRST: By reason of the aforementioned failure and refusal by defendants to respond to the Notice and to proceed with transfer of the premises, plaintiffs are entitled to equitable relief in the form of a judgment directing specific performance thereof. -6-
AS AND FOR A SECOND CAUSE OF ACTION FOR DAMAGES THIRTY-SECOND: Plaintiffs repeat and reallege each any every allegation set forth in paragraphs FIRST through THIRTY-FIRST as if fully set forth herein. THIRTY-THIRD: As a result of the failure and refusal of defendant, Ardi, Inc., to proceed with the purchase option as contained in the Lease Agreement in a timely and expeditious manner, plaintiffs have incurred increased rental costs in connection with their occupancy of the premises. THIRTY-FOURTH: As a result of the failure and refusal of defendant, Armand's Restaurant, Inc., to proceed with the purchase option as contained in the Lease Agreement in a timely and expeditious manner, plaintiffs have incurred increased rental costs in connection with their occupancy of the premises. THIRTY-FIFTH: As a result of the failure and refusal of defendant, Armand LaMacchia, to proceed with the purchase option as contained in the Lease ' Agreement in a timely and expeditious manner, plaintiffs have incurred increased rental costs in connection with their occupancy of the premises. THIRTY-SIXTH: As a result of the failure and refusal of defendant, Ardi, Inc., to proceed with the purchase option as contained in the Lease Agreement in a timely and expeditious manner, plaintiffs have incurred increased purchase and interest costs in connection with acquisition of the premises. THIRTY-SEVENTH: As a result of the failure and refusal of defendant, Armand's Restaurant, Inc., to proceed with the purchase option as contained in the - 7 -
Lease Agreement in a timely and expeditious manner, plaintiffs have incurred increased purchase and interest costs in connection with acquisition of the premises. THIRTY-EIGHTH: As a result of the failure and refusal of defendant, Armand LaMacchia, to proceed with the purchase option as contained in the Lease Agreement in a timely and expeditious manner, plaintiffs have incurred increased purchase and interest costs in connection with acquisition of the premises. THIRTY-NINTH: By reason of the aforementioned failure and refusal by defendants to respond to the Notice and to proceed with transfer of the premises, plaintiffs have been damaged to the extent of incurring increased rental and acquisition costs and are entitled to a judgment therefor. WHEREFORE, Plaintiffs Blackburn Food Corp, Brian Blackburn, and Pamela Blackburn, demand judgment against Defendants, Ardi, Inc., Armand's Restaurant, Inc., Armand LaMacchia, Individually and as Shareholder of Ardi, Inc. and as I Shareholder of Armand's Restaurant, Inc., Gregory N. Ferraris, Individually and as Shareholder of Ardi, Inc. and as Administrator of the Estate of Richard J. Ferraris and as Executor of the Estate of Susan Ferraris, Richard S. Ferraris, Individually and as Shareholder Ardi, Inc. Corporation, as follows: 1. On the First Cause of Action, judgment directing specific performance of the purchase option of the premises at a net contract and purchase price of Six Hundred Eighty One Thousand Dollars ($681,000.00) and requiring defendants to expeditiously proceed to contract and closing under the supervision of the Court. -8-
2. On the Second Cause of Action, judgment in an amount to be approved by the Court representing the actual additional rent and acquisition costs incurred by plaintiffs as the result of the failure and refusal to timely honor the purchase option as contained in the Lease Agreement. Dated: Garden City, New York September 15, 2015 Yours, etc., fu~~>,/ '. /,-, ~1:<~'//A ~i h~~c~~ Attorneys for Plaintiffs Post Office Address 1205 Franklin A venue Suite# 300 Garden City, New York 11530 (516) 742-5200 -9-
ATTORNEY'S VERIFICATION STATE OF NEW YORK COUNTY OF NASSAU I ss: The undersigned, an attorney admitted to practice in the courts of the State of New York, shows: that deponent is a member of the firm of FLECK, FLECK & FLECK, ESQS., the attorneys of record for plaintiffs, Blackburn Food Corp., Brian Blackburn, and Pamela Blackburn, in the within action; that deponent has read the foregoing VERIFIED COMPLAINT, and knows the contents thereof; that the same is true to deponent's own knowledge, except as to those matters therein stated to be alleged upon information and belief, and that as to those matters, deponent believes them to be true. Deponent further says that the reason this verification is made by deponent and not by plaintiffs is that said plaintiffs are not located within the county wherein deponent has his office. The grounds of deponent's belief as to all matters not stated upon depo-, nent's knowledge are as follows: investigations which his office has caused to be made and reports thereon and communications had with said defendant in this action. penalties of perjury. The undersigned affirms that the foregoing statements are true, under the Dated: Garden City, New York September 15, 2015-10-