FILED: NEW YORK COUNTY CLERK 09/07/2016 02:11 PM INDEX NO. 156376/2016 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/07/2016 EXHIBIT B
FILED: NEW YORK COUNTY CLERK 12/31/2014 10:27 AM INDEX NO. 653950/2014 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/31/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PARMWOOD ASSIGNMENT LLC, Index No.: 653950/2014 v. Plaintiff, GINZA 3, LLC, GINZA HOLDING LLC, DMITRY SERGEEV, TATIANA B. BRUNETTI, and GINZA 2, LLC d/b/a MARI VANNA RESTAURANT, Defendants. COMPLAINT I. INTRODUCTION Plaintiff Parmwood Assignment LLC, as assignee, brings this action to recover millions of dollars in monies loaned to Ginza 3, LLC ostensibly for the purpose of financing a New York City nightclub and restaurant. The restaurant and nightclub failed, Ginza 3, LLC defaulted, and the loans remain unpaid. Ginza 3, LLC breached the commercial loan agreements, and Plaintiff, as assignee of the original lenders, is entitled to recover now the full amount due and owing. Defendants also collectively engaged in a fraudulent scheme to avoid or hinder repayment of the debt owed, including by diverting loan funds to finance other unrelated business ventures. Plaintiff is entitled to an order voiding the fraudulent transfers, and entry of equitable orders barring Defendants from further dissipating assets of Ginza 3, LLC. {V0221250.1}
II. PARTIES 1. Plaintiff Parmwood Assignment LLC ( Parmwood ) is a Delaware limited liability company with its principal place of business at 2711 Centerville Road, Suite 400, Wilmington, Delaware, County of New Castle. 2. Plaintiff is the assignee of original lenders Conewood Limited ( Conewood ) and Parmstone LTD ( Parmstone ) (collectively the Lenders ). 3. Defendant Ginza 3, LLC (the Company ) is a New York limited liability company with a place of business at 41 East 20 th Street, N.Y., N.Y. 10003, County of New York. 4. Defendant Ginza Holding, LLC ( Ginza Holding ) is a New York limited liability company with a place of business at 247 West 46 th Street, Apt 3502, N.Y., N.Y. 10036, County of New York. 5. Defendant Tatiana B. Brunetti ( Brunetti ) is an individual who, upon information and belief, resides at 68 Highland Avenue, Demarest, New Jersey, County of Bergen. 6. Defendant Dmitry Sergeev ( Sergeev ) is an individual who, upon information and belief, resides in Los Angeles, California, County of Los Angeles. 7. Defendant Ginza 2, LLC d/b/a Mari Vanna Restaurant ( Mari Vanna ) is a New York limited liability company with a place of business at Mari Vanna, 41 East 20 th Street. N.Y., N.Y. 10003, County of New York. III. JURISDICTION AND VENUE 8. This Court has jurisdiction over this action in that the acts and transactions complained of took place in the County of New York. 9. Venue in this Court is proper in that the Defendants maintained places of business in the City, State and County of New York. {V0221250.1} -2-
IV. FACTUAL ALLEGATIONS 10. The Company was established and formed in 2008. 11. Sergeev and Brunetti originally owned all membership interests in the Company. 12. Sergeev and Brunetti subsequently transferred their membership interests in the Company. However, Sergeev and Brunetti continued to manage and control the daily operations of the Company through 2014. 13. Brunetti and Sergeev, individually or through other entities, owned or controlled Ginza Holding. 14. At all relevant times, Brunetti and Sergeev, individually or through Ginza Holding, served on the Board of Directors a/k/a the Board of Managers for the Company. 15. Sergeev and Brunetti each at various times through 2014 held the title of Executive Manager and/or Managing Member of the Company. 16. At all relevant times, Sergeev and Brunetti maintained the financial books and records of the Company, and controlled the Company finances. 17. At all times relevant, both Sergeev and Brunetti were fiduciaries of the Company. 18. Sergeev and Brunetti caused the Company to borrow in excess of $6 million purportedly to construct, open, and operate a high-end nightclub lounge, bar, and restaurant/cabaret business known as Jelsomino located in the Dream Hotel in New York City (the Restaurant ). 19. Sergeev and Brunetti were responsible for the day-to-day management and supervision of all aspects of operating the business of the Restaurant. 20. Sergeev and Brunetti represented that the Company needed to borrow substantial monies to develop, construct, fund and operate the Restaurant. {V0221250.1} -3-
21. Commencing in 2010, the Company entered into various loan agreements with Conewood (the Conewood Loan Agreements ), whereby Conewood loaned the Company a total principal amount of $3,424,000.00 (the Conewood Loan ). Copies of the Conewood Loan Agreements are attached hereto collectively at Exhibit 1 and incorporated herein. 22. The Company agreed to repay the Conewood Loan with interest in accordance with the terms and conditions of the Conewood Loan Agreements. 23. The Conewood Loan Agreements included a covenant by the Company, as Borrower, to maintain and preserve its existence and business as presently conducted. 24. The Conewood Loan Agreements provided that that breach of any covenant by the Company would constitute an Event of Default, which permitted acceleration of the entire unpaid principal balances due and owing on the Conewood Loan without further notice to the Company and without any opportunity to cure. 25. In 2014, the Company ceased operating the Restaurant, thereby triggering an Event of Default under the Conewood Loan Agreements. 26. In 2011, Parmstone agreed to loan the Company the principal amount of $3,335,917.00 (the Parmstone Loan ) through a written agreement (the Parmstone Loan Agreement ). A copy of the Third Amended and Restated Operating Agreement of the Company containing the Parmstone Loan provisions and constituting the Parmstone Loan Agreement is attached hereto at Exhibit 2 and incorporated herein. 27. The Company agreed to repay the Parmstone Loan, plus interest, using revenue generated by the Restaurant. 28. In 2014, the Company ceased operating the Restaurant, thereby resulting in a default under the Parmstone Loan. {V0221250.1} -4-
29. The Company failed to repay the Conewood Loan. 30. The Company failed to repay the Parmstone Loan. 31. The Lenders unconditionally assigned all of their rights to and under the Parmstone Loan to Parmwood. 32. The Lenders unconditionally assigned all of their rights to and under the Conewood Loan to Parmwood. 33. At all times, Sergeev and Brunetti represented that the monies advanced under the Parmstone Loan and Conewood Loan were utilized solely for the benefit of the Company and the Restaurant. 34. During this same time period, upon information and belief, Sergeev and Brunetti were working on or participating in a number of other business ventures. 35. One of the other projects involved Mari Vanna, a high-end restaurant located in New York City. 36. Upon information and belief, Brunetti, Sergeev, and/or Ginza Holding utilized monies of the Company received pursuant to the Parmstone Loan and the Conewood Loan to fund and finance the operations of Mari Vanna, contrary to the representations and promises that all loan monies were used for the benefit of the Company and the Restaurant. 37. Upon information and belief, Mari Vanna received multiple cash transfers from the Company. In excess of $350,000.00 transferred from the Company to or for the benefit of Mari Vanna in 2012, alone. 38. Upon information and belief, Brunetti and Sergeev caused loan monies intended for the benefit of the Company to be diverted through the bank accounts of Attorney Alexander Karasik, who also worked on other entities for Brunetti, Sergeev, and Ginza Holding. {V0221250.1} -5-
39. Upon information and belief, the monies received by the Company pursuant to the Parmstone Loan and Conewood Loan and other assets of the Company were transferred and conveyed by one or more of the Defendants to Mari Vanna for less than fair consideration. 40. Upon information and belief, the monies received by the Company pursuant to the Parmstone Loan and Conewood Loan and other assets of the Company were transferred and conveyed by one or more of the Defendants to Ginza 5, LLC for less than fair consideration. 41. Upon information and belief, the monies received by the Company pursuant to the Parmstone Loan and Conewood Loan and other assets of the Company were transferred and conveyed by one or more of the Defendants to Ginza Holding or its portfolio companies for less than fair consideration. 42. Upon information and belief, the monies received by the Company pursuant to the Parmstone Loan and Conewood Loan and other assets of the Company were transferred and conveyed by one or more of the Defendants to other entities operated or controlled by Sergeev or Brunetti for less than fair consideration. 43. Upon information and belief, the Company was either insolvent at the time of the transfers and conveyances, or became insolvent as a result of the transfers and conveyances. 44. Brunetti and Sergeev provided financial accountings and reconciliations of the loan monies that were incomplete, misleading, or inaccurate. 45. Brunetti admitted that monies received by the Company pursuant to the Conewood Loan and Parmstone Loan were transferred to other entities. 46. Brunetti admitted operating approximately twelve (12) different companies individually or through Ginza Holding, and conceded transfers of Company assets to the other businesses. {V0221250.1} -6-
47. Upon information and belief, Ginza Holding received the benefit of loan money earmarked for the Company as a result of the actions of Sergeev and Brunetti. 48. Upon information and belief, Sergeev and Brunetti hold an ownership interest in or manage Ginza Holding. 49. Upon information and belief, Ginza Holding owns and operates a portfolio of companies that operate in the hospitality and restaurant industry. 50. Upon information and belief, Ginza Holding and/or its portfolio companies received the benefit of the loan monies intended for the Company pursuant to the Parmstone Loan and Conewood Loan. 51. In April 2013, Brunetti and Sergeev falsely represented that revenues from the Restaurant were growing and that the Company would be profitable within weeks, with the intent to deceive and hide the diversion of Company assets. 52. In May 2013, Brunetti and Sergeev falsely represented that attendance at the Restaurant was strong, that revenue was growing, and that the Restaurant would achieve profitability, again with the intent to deceive and hide the diversion of Company assets. 53. Soon thereafter, Sergeev and Brunetti suddenly reported that the Restaurant was closing operations due to a lack of revenue and continued losses. 54. By August 2013, the Restaurant ceased daily operations. 55. The Company s lease was terminated in 2014. 56. Sergeev and Brunetti ignored requests for information about Company assets, and provided vague, inconsistent and sporadic information about the Restaurant. 57. Brunetti and Sergeev ignored demands for an accounting of the loan monies. 58. Sergeev and Brunetti misrepresented the financial condition of the Company. {V0221250.1} -7-
59. Sergeev and Brunetti used the monies received from the Parmstone Loan and the Conewood Loan and other assets of the Company for their own personal benefit and benefit of other companies in which they had a personal financial interest or stake, including Mari Vanna. 60. As a result of the diversion of Company assets, the Company was unable to continue to operate and unable to repay the Parmstone Loan and Conewood Loans. V. CAUSES OF ACTION Count I (Breach of Contract) 61. Plaintiff repeats and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 62. The Company entered into the Conewood Loan Agreements as binding contracts supported by valuable consideration. 63. The Company entered into the Parmstone Loan Agreement as a binding contract supported by valuable consideration. 64. Conewood fully performed under the Conewood Loan Agreements. 65. Parmstone fully performed under the Parmstone Loan Agreement. 66. The Company breached the Conewood Loan Agreements by failing or refusing to utilize all of the monies received pursuant to the Conewood Loan for the purpose of constructing, opening, and operating the Restaurant, and in other ways that will be proven at trial. 67. The Company breached the Parmstone Loan Agreement by failing or refusing to utilize all of the monies received pursuant to the Parmstone Loan for the purpose of constructing, opening, and operating the Restaurant, and in other ways that will be proven at trial. 68. The Company breached the Conewood Loan Agreements by failing or refusing to repay the Conewood Loan. {V0221250.1} -8-
69. The Company breached the Parmstone Loan Agreement by failing or refusing to repay the Parmstone Loan. 70. The Company defaulted under the Conewood Loan Agreements. 71. The Company defaulted under the Parmstone Loan Agreement. 72. Parmstone and Conewood have assigned all rights and claims to Parmwood. Count II (Unjust Enrichment) 73. Plaintiff repeats and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 74. The Company, Brunetti, Sergeev, Mari Vanna, and Ginza Holding retained the benefit of the monies had and received pursuant to the Parmstone Loan and the Conewood Loan. enriched. 75. The Company, Brunetti, Sergeev, Mari Vanna, and Ginza Holding were unjustly 76. Equity and good conscience require restitution by the Company, Brunetti, Sergeev, Mari Vanna, and Ginza Holding of all amounts unjustly retained. 77. Parmwood, as assignee, is entitled to be paid restitution as a result of the unjust enrichment of Defendants. Count III (Breach of Fiduciary Duty) 78. Plaintiff repeats and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 79. At all relevant time, Brunetti and Sergeev were directors and Executive Managers of the Company with direct control over and responsibility for the daily operations of the Company. {V0221250.1} -9-
80. Brunetti and Sergeev owed a fiduciary duty to general creditors of the Company to preserve assets of the Company once the Company became insolvent. 81. Sergeev and Brunetti breached their fiduciary duties owed to the Lenders as general creditors of the Company. 82. As a direct and proximate result of the breach of fiduciary duty, the Lenders suffered and continue to suffer loss and damage, including economic injury. 83. The Lenders have assigned all rights and claims to Parmwood. Count IV (Fraudulent Conveyance/Transfer) 84. Plaintiff repeats and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 85. The Lenders, at all times relevant, were and are creditors of the Company. 86. Sergeev and/or Brunetti caused the Company to convey and transfer assets, including monies received pursuant to the Parmstone Loan and Conewood Loan, to third-parties to benefit their own personal financial interests. 87. Sergeev and/or Brunetti caused the Company to convey and transfer assets for less than fair consideration. 88. Sergeev and/or Brunetti caused the Company to convey and transfer assets at the time that the Company was insolvent. 89. Sergeev and/or Brunetti caused the Company to convey and transfer assets that resulted in the Company becoming insolvent. 90. Sergeev and/or Brunetti caused the Company to incur obligations that hindered, delayed, or defrauded creditors. {V0221250.1} -10-
91. Sergeev and/or Brunetti caused the Company to convey and transfer assets that hindered, delayed, or defrauded creditors. 92. The transfers, conveyances, and obligations incurred are void and must be set aside pursuant to New York Creditor & Debtor Law, and common law. 93. The transfers, conveyances, and obligations incurred were made by Sergeev and/or Brunetti with the actual intent to defraud, hinder, or delay creditors. 94. The transfers, conveyances, and obligations incurred are void and must be set aside pursuant to New York Creditor & Debtor Law 276. 95. Mari Vanna, Sergeev, Brunetti, and Ginza Holding received or retained the benefit of one or more of the fraudulent transfers and conveyances of Company assets, and are liable to disgorge all assets as fraudulent conveyances or transfers. 96. Parmwood, as assignee, is a creditor and holds all rights and claims to set aside the fraudulent transfers or conveyances. 97. Parmwood, as assignee, is a creditor and holds all rights and claims to recover the fraudulent transfers or conveyances. Count V (Constructive Trust) 98. Plaintiff repeats and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 99. Sergeev and/or Brunetti utilized assets for the benefit of the operation of other business ventures and entities over which each had control or in which each held a personal interest, including Mari Vanna and Ginza Holding. 100. Sergeev and Brunetti co-mingled the assets of the Company with the assets of other ventures or entities, including Mari Vanna and Ginza Holding. {V0221250.1} -11-
101. Brunetti and Sergeev caused to be transferred to Mari Vanna assets of the Company, including funds received from the Parmstone Loan and the Conewood Loan. 102. Brunetti and Sergeev caused to be transferred to Ginza Holding or its portfolio companies assets of the Company, including funds received from the Parmstone Loan and the Conewood Loan. 103. Parmwood is entitled to the imposition of a constructive trust over assets of the Company, including loan monies or other property derived therefrom, in the possession, custody, or control of Sergeev and/or Brunetti as well as other entities or ventures that Sergeev and /or Brunetti own, operate, or control including Mari Vanna and Ginza Holding. 104. Parmwood is entitled to the imposition of a constructive trust to recover Company assets and/or avoid the further dissipation of Company assets. Count VI (Accounting) 105. Plaintiff repeats and incorporates by reference the allegations contained in the preceding paragraphs as if fully set forth herein. 106. Sergeev and Brunetti must account for all Company assets utilized for the benefit of the operation of other personal business ventures and entities over which Brunetti and/or Sergeev had control or in which each held a personal interest, including all loan monies received pursuant to the Conewood Loan and Parmstone Loan. VI. REQUEST FOR RELIEF Court to: WHEREFORE, Plaintiff Parmwood Assignment LLC respectfully requests this Honorable 1. Enter judgment in its favor on all Counts of the Complaint; 2. Award damages of not less $6,759,917.00 on all Counts of the Complaint together with interest thereon; {V0221250.1} -12-
3. Order Brunetti and Sergeev to provide a full and complete accounting of all assets of Ginza 3, LLC, including all loan monies received pursuant to the Parmstone Loan Agreement and the Conewood Loan Agreements; 4. Declare void the fraudulent transfers and conveyances to or by the Defendants; 5. Order that Sergeev, Brunetti, Ginza Holding, LLC, and Mari Vanna to pay over all assets of Ginza 3, LLC that were fraudulently transferred or conveyed; 6. Order a constructive trust shall be imposed on all assets of Ginza 3, LLC in the possession, custody or control of Sergeev and/or Brunetti or caused to be transferred or conveyed by Sergeev and/or Brunetti to third-parties, including Mari Vanna and Ginza Holding, LLC; 7. Enter an injunction restraining and enjoining Sergeev and/or Brunetti from dissipating, conveying, transferring, or disposing of any assets of Ginza 3, LLC in the possession, custody or control of Brunetti and/or Sergeev or in the possession, custody or control of any entity or third-party which Sergeev and/or Brunetti own, operate, manage, or control, including Mari Vanna and Ginza Holding, LLC. 8. Awarding attorneys fees, costs and disbursements incurred in bringing this action; and, 9. Granting such other and further relief as to this Court deems just and proper. Dated: White Plains, New York December 23, 2014 ECKERT SEAMANS CHERIN & MELLOTT, LLC Attorneys for Plaintiff Parmwood Assignment LLC By: Thomas M. Smith Thomas M. Smith. 10 Bank Street, Suite 700 White Plains, NY 10606 914-286-2807 tsmith@eckertseamans.com {V0221250.1} -13-