EFTA01296884.pdf

Neptune, LLC
NAME SEARCHED:
PWM 81S-RESEARCH performed due diligence research in accordance with the standards set by AML Compliance for your business. We completed thorough searches
on your subject name(s) in the required databases and have attached the search results under the correct heading below.
Significant negative media results may require escalation to senior business, Legal and Compliance management. Also, all accounts invoMng PEPs must be escalated.
Search: Result: Click here for results: Reviewer Comments (as necessary):
* No Hit O Not Required
RDC I. RDC Results No RDC alert (Please co: attached)
■ Hit
PCR No Hit O Not Required II. PCR Results No PCR alert (Please sec attached)
O Hit
IS Yes O No Ill. Negative Media Result found(Plcase sec attached)
BIS Required IV. !Von-Negative Media Result found(Plcase sec attached)
M Not
V. Other Language Media There was no information found
Result found(Platsc see attached)
Results? Yes • No
D&B VI. D&H
• Not Required
Result found(Please see attached)
Smartlinx Results? 0 Yes O No
NI Not Required VII. Smartlinx
Review by Legal May Result found(Plcasc sec attached)
Court Cast% be Required O No Results VIII. Court Cases
O Search not requiral
Prepared by: Shanu Gujaria Date:06/16/2017
Research Analyst
Instructions:
1. Review and confirm that all results are returned for your client.
2. Please note that you are still required to perform any Martindale-Hubbell search (if applicable) on each search subject. We have attached the web link
below for your convenicnce:Martindale-Ilubbellhttp://www.martindale.comisp/Martindakihome.xml
3. As needed, provide comment for any negative results.
4. If applicable, please obtain clearance from Compliance for all alerts.
5. Save any changes you make to this document and attach file to your KYC.
Please note: Submission of a signed KYC is your confirmation that you have fully reviewed the research documents.
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OFAC RESULTS
RDC:
Cc, J.Ir.:•..vIRGIN ISLANDS,
11602687 Not Alerted KYC 1790748
Neptune, LLC U.S.
aa:
11602692 Not Alerted KYC 1790748 'NIIi E:1' EFATE'S,
Neptune, LLC
PCR:
C20170637909090 Neptune, LLC 62012 15544 NCA customised Closed - No Hit 16/06/2017
C20170637909089 Neptune, LLC 6201215544 NCA customised Closed - No Hit 16/06/2017
BIS RESULTS
Negative Media:
The Santa Fe New Mexican (New Mexico)
Distributed by McClatchy-Tribune Business News
September 9, 2014 Tuesday
King donors' address linked to sex offender
BYLINE: Steve Terrell, The Santa Fe New Mexican
SECTION: STATE AND REGIONAL NEWS
LENGTH: 383 words
Sept. 09—Democratic gubernatorial candidate Gary King has received more than $35,000
in campaign contributions from an address in the U.S. Virgin Islands that also is listed as
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King donors' address linked to sex offender The Santa Fe New Mexican (New Mexico)
September 9, 2014 Tuesday
the address of a convicted sex offender who years ago bought property near Stanley from
King's family.
Jeffrey Epstein is listed in the New York state sex offender registry as currently residing at
6100 Red Hook Quarter B3, St. Thomas Virgin Islands. He was convicted in 2008 of
soliciting sex from girls as young as 14. Police said Epstein had sex with five teenagers he
hired to give him massages at his Florida home.
More than $30,000 in contributions listed in King's latest campaign finance report, filed
Monday, came from several businesses using Epstein's address. These include $10,200
from JEGE LLC: $5,200 from Maple Inc.; and $5,000 each from FT Real Estate, Laurel
Inc. and Nautilus Inc. Earlier this year, King received another contribution from a business
at the same address — $5,200 from Neptune LLC.
A spokesman for the King campaign said Monday, "If anything is found to be improper
about any contribution, they will be returned or donated to charity."
If so, it wouldn't be the first time King returned campaign money linked to Epstein.
In 2006, following Epstein's arrest, Democratic politicians from Bill Richardson down to the
Santa Fe County sheriff returned Epstein campaign contributions. King gave back $15,000
that an Epstein company called The Zorro Trust had contributed to his campaign for
attorney general.
At the time, King said, "I don't think I've ever met him personally. He knows other members
of my family better."
Epstein had purchased his 10,000-acre Zorro Ranch in Stanley from King's father, former
Gov. Bruce King, in 1993.
Then-Gov. Bill Richardson donated $50,000 in Epstein campaign contributions to charity.
Epstein's 23,000-square-foot hilltop mansion, which was twice the size of the second
largest home in Santa Fe County, was thought at that time to be the biggest house in the
state.
Contact Steve Terrell at Read his political blog at
www.santafenewmexican.com/news/blogs/politics.
(c)2014 The Santa Fe New Mexican (Santa Fe, N.M.) Visit The Santa Fe New
Mexican (Santa Fe, N.M.) at www.santafenewmexican.com Distributed by MCT
Information Services
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King donors' address linked to sex offender The Santa Fe New Mexican (New Mexico)
September 9, 2014 Tuesday
Copyright 2014 The Santa Fe New Mexican
Non-Negative Media:
The Santa Fe New Mexican (New Mexico)
Distributed by McClatchy-Tribune Business News
July 4, 2014 Friday
Reports show Martinez still has lopsided lead in race for campaign cash
BYLINE: Steve Terrell, The Santa Fe New Mexican
SECTION: NATIONAL POLITICAL NEWS
LENGTH: 977 words
July 04--Gov. Susana Martinez's campaign has more than 37 times more money in the
bank than her Democratic opponent, Gary King, according to campaign finance reports
filed Thursday.
According to the reports, filed with the Secretary of State's Office, the incumbent
Republican governor raised more than $869,000 in the past month and spent $860,054,
which left her with more than $4.3 million in cash on hand.
King, who won the five-person Democratic primary in early June, raised $320,665 - of
which $200,000 came from his own pocket. He spent a little over $280,000, mostly on two
television commercials, which left him with slightly more than $116,000 in the bank.
While the person with the most money doesn't always win the election, the lopsided figures
give Martinez a huge advantage for carrying her message to voters. And such a wide
spread could discourage large out-of-state donors from contributing to King. The head of
the Democratic Governors Association already has said that group won't be spending
money in New Mexico.
The television battle has been intense since the primary, with the Martinez campaign as
well as the Republican Governors Association releasing ads bashing King, who is the state
attorney general and the son of a former governor.
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Reports show Martinez still has lopsided lead in race for campaign cash The Santa Fe
New Mexican (New Mexico) July 4, 2014 Friday
According to Martinez's reports, the campaign bought television and radio time totaling
$475,327. The campaign also paid consultant Jay McCleskey's company more than
$64,000 to produce the ads.
In addition, a report filed Thursday by RGA New Mexico PAC, a political action committee
of the Republican Governors Association, shows that group spent a total of $571,290 on
ads attacking King. That's $12,650 to produce the spots and $548,040 for buying the TV
time.
King paid Canal Partners Media, a Georgia company, $200,000 to produce and place his
ads.
As has been the case in past Martinez reports, a large share of her money came from
Texas. Eleven of her 15 largest contributors were from the Lone Star State.
New Mexico election law limits individual campaign contributions to $5,200 for the primary
and $5,200 for the general election. So this is the last report in this cycle in which
contributors could give as much as $10,400 -- as long as $5,200 of it was made on or
before June 3.
Martinez's largest contributors all contributed on that date.
Those who gave $10,400 were the Republican National Committee; Associations Inc of
Dallas, a media services company; Noble Royalties, an oil and gas royalties company of
Addison, Texas; Compass Royalty Management of Addison; Jay Adair of Dallas; Marcus
Hiles, Chairman & CEO of Western Rim/Mansions Custom Homes in Grand Prairie,
Texas, and his wife, Nancy Hiles, who listed her occupation as homemaker; George Ryan
of Dallas, CEO of Ryan Separate Partnership, which is involved in real estate; the National
Shooting Sports Foundation of Newton, Conn.; and Diane Wilsey, a San Francisco
socialite and philanthropist.
Martinez also had several $10,000 contributors: Lee Roy Mitchell of Dallas, founder of
Cinemark Theaters; Eloisa Hendric, an educator in El Paso; the Border Livestock Co. of El
Paso; someone listed as "Director of Mural Technologies" of El Paso; and Edgar Medina,
an account executive in Glendale, Ariz.
Many of the top contributors to Martinez's campaign also contributed to Susana PAC, a
separate political committee run by the governors political team. Among those contributors
were Hendric, Medina and the Border Livestock Co. All gave $10,000 to Susana PAC.
The PAC raised $70,811, spent $20,764 and has $120,814 cash on hand. Susana PAC
contributed $5,200 to Susan Riedel, the Republican candidate for attorney general; $2,700
to Secretary of State Diana Duran; and $2,575 to GOP Land Commissioner candidate
Aubrey Dunn Jr. In 2012, there was a rift between the governor and Dunn because she
didn't support him in his Senate race against Democrat Phil Griego. Apparently, that
wound has healed.
King had two $10,400 donors, rancher Ed Healy and his wife, Trudy Healy, of Taos.
However, their contribution was made June 25, after the deadline. Ken Ortiz, chief of staff
for the Secretary of State's Office, said Thursday, "If someone made two contributions of
$5,200 after the primary, that would be $5,200 over the general election limit."
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Reports show Martinez still has lopsided lead in race for campaign cash The Santa Fe
New Mexican (New Mexico) July 4, 2014 Friday
King campaign manager Keith Breitbach told The Associated Press on Thursday that he
thinks the contributions are permissible because $5,200 from each went for retirement of
King's debt from the primary election. King has more than $535,000 in unpaid campaign
debt.
King's $5,200 contributors included retired publisher Alan Webber of Santa Fe, who came
in second to King in the primary.
Others who gave King $5,200 were Pojoaque Gaming Inc.; the Buffalo Thunder Resort &
Casino in Pojoaque Pueblo; Amelia Carson of Santa Fe; Bill King of Moriarty; HBRK
Associates, a New York investment company; Neptune LLC, a Virgin Islands investment
company; and Darren Indyke, a New York lawyer.
King's report shows that the campaign paid Steve Verzwyvelt — his former campaign
manager who only lasted two days - $7,538. Verzwyvelt was fired after a right-wing
publication discovered several juvenile tweets that some women found offensive.
Webber reported raising $41,263 in the last days of the primary. He spent $140,471 since
the last report, leaving just over $71,00 in the bank. He still has $150,000 in unpaid
campaign debt, but that is from loans from himself and his wife.
Another also-ran, Lawrence Rael, raised $14,520 since the last report, spent $95,911 and
has $28,094. Rael has $176,950 in unpaid debt.
Contact Steve Terrell at Read his political blog at
www.santafenewmexican.com/news/blogs/politics.
(c)2014 The Santa Fe New Mexican (Santa Fe, N.M.) Visit The Santa Fe New
Mexican (Santa Fe, N.M.) at www.santafenewmexican.com Distributed by MCT
Information Services
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United States Courts Opinions: Supreme Court of New York: Neary v Burns US Official
News April 1, 2014 Tuesday
Plus Media Solutions
US Official News
April 1, 2014 Tuesday
United States Courts Opinions: Supreme Court of New York: Neary v
Burns
LENGTH: 6047 words
DATELINE: Albany
Supreme Court of New York has issued the following order:
Neary v Burns
2014 NY Slip Op 24083
Decided on March 28, 2014
Supreme Court, Kings County
Demarest, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official
Reports.
Decided on March 28, 2014
Supreme Court, Kings County
Thomas J. Neary and Salvatore Benevento, Plaintiffs,
against
Arthur Burns and 2784 West 15th Street, LLC, Defendants.
6290/2011
Attorneys for Plaintiff:
Thomas Torto, Esq.
419 Park Avenue South, Suite 406
New York, NY 10016
Attorney for Defendants:
Michele Forzley, Esq.
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5405 Tuckerman Lane #231
N. Bethesda, MD 20852
Carolyn E. Demarest, J.
In this action by plaintiffs Thomas J. Neary (Neary) and Salvatore Benevento (Benevento)
(collectively, plaintiffs) against defendants 2784 West 15th Street, LLC (2784 LLC) and
Arthur Burns (Burns), Burns moves for an order, pursuant to CPLR 3211, dismissing
plaintiffs' complaint in its entirety, and awarding him full reimbursement of his legal fees
and costs.
BACKGROUND
Salvatore Judice (Mr. Judice) was the owner of two parcels of real property. One of these
parcels is located at 2776, 2778, and 2784 West 15th Street, in Brooklyn (Block 8996, Lots
89, 91, and 92) (the 2784 premises), and the other parcel is at located at 363-367 Neptune
Avenue, in Brooklyn (the Neptune Avenue premises). The Neptune Avenue premises
consists of two buildings with six units in each of them. When Mr. Judice died in 1973, he
left the 2784 premises and the Neptune Avenue premises to his five children, i.e., Grace
Burns (Grace), Anna Neary (Anna), Lucy Judice (Lucy), John E. Judice (John), and Julia J.
Benevento (Julia), and, by subsequent deeds, both of these premises were conveyed to
them as tenants in common. Plaintiffs Neary and Benevento have resided virtually their
entire lives in residential apartments in the building at 367 Neptune Avenue within the
Neptune Avenue premises as rent-stabilized tenants. Anna died in 1987, and she left her
estate to her husband, Thomas J. Neary, Sr. (Thomas), who died on August 2, 2004.
Thomas' estate passed to plaintiff Thomas Neary, Salvatore Neary (Salvatore), and Mary
Ann Peraccio (Mary Ann), who thereby inherited Thomas' ownership interest both in the
2784 premises and the Neptune Avenue premises.
In 2006, the family members that held interests in the 2784 premises and the Neptune
Avenue premises agreed to form two limited liability companies (LLCs), i.e., 2784 LLC and
363-367 Neptune Avenue. LLC (Neptune LLC), to which their respective interests in these
properties would be transferred, with Ray McRory, Esq. acting as their attorney. On
November 10, 2006, the Operating Agreement of 2784 LLC was executed by its initial
members, who were listed as: Grace (by Burns, as her attorney-in-fact), Julia (by
Benevento, as her attorney-in-fact), Neary, Salvatore, and Mary Ann. An almost identical
Operating Agreement of Neptune LLC was also executed by these members on the same
date. The members conveyed their interests in the 2784 premises to 2784 LLC and their
interests in the Neptune Avenue premises to Neptune LLC. Pursuant to the Operating
Agreements, Burns was named the manager of both LLCs.
Thereafter, John died on March 28, 2007 and his estate passed to Carmel Salerno,
Patricia Judice, Joanne Judice Rafaella, and Salvatore Judice (Judice). The Estate of John
['2]conveyed its interests in the 2784 premises and the Neptune Avenue premises to the
two LLCs. Lucy Judice died without having children, and her estate conveyed its interest in
the 2784 premises and the Neptune Avenue premises to the two LLCs. To reflect these
changes, on November 1, 2007, an Amended and Restated Operating Agreement for 2784
LLC was executed by all of the initial members, and by the Estate of John (by Judice, as
the executor), as a new member. Schedule A to 2784 LLC's Operating Agreement
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(annexed as exhibit 2 to Burns' motion papers) lists the voting percentage interests of its
members as being: 44.8% for the Estate of John, 18.4% for Grace, 18.4% for Julia, and
18.4% for the Neary Group, consisting of three listed members, i.e., Neary, Salvatore, and
Mary Ann. At some time prior to 2011, Julia died, and her estate passed to her two sons,
Benevento and Anthony Bevent (Anthony), in equal shares, pursuant to a will which also
named them as co-executors.
In April 2009, members of Neptune LLC were requested to vote on a proposal to sell the
Neptune Avenue premises. Benevento (on behalf of the Estate of Julia) and Neary voted
no to this proposal. By a letter dated April 21, 2009, the members of Neptune LLC were
informed that on April 20, 2009, 73.3% of the Neptune LLC's membership had voted in
favor of this proposal, and that, as a result, Burns was authorized to sell the Neptune
Avenue premises at the highest and best price possible and to take any necessary steps
to do so, including vacating all tenants from such premises.
In September 2009, Burns, on behalf of 2784 LLC, executed a purchase agreement to sell
the 2784 premises to M & A Realty Services, LLC for a sales price of $1,050,000. In 2010,
the 2784 premises were sold with the purchase price for this sale paid in cash and by a
purchase money mortgage. Prior to the sale, 2784 LLC's members signed a Certificate of
Members of 2784 LLC Resolution to Sell Real Property (the Certificate) in accordance with
section 3.4 of the Operating Agreement, which required that the manager have prior
written approval of a majority vote of all members in order to sell the 2784 premises. The
Certificate was signed by the Estate of John (by Judice), Grace (by Burns, as her attorney-
in-fact), the Estate of Julia (by Anthony), and the Neary Group (by Mary Ann, as the
authorized representative), and reflected their respective interests in 2784 LLC of 44.8%
for the Estate of John, 18.4% for Grace, 18.4% for the Estate of Julia, and 18.4%
collectively for the Neary Group.
Using the funds obtained from this sale of the 2784 LLC premises, Burns, as the manager
of 2784 LLC, gave a mortgage and loan from it to Neptune LLC for $250,000 at five
percent interest with a mortgage on the Neptune Avenue premises to be paid when these
premises are sold. These monies were allegedly used to buy out the non-family tenants of
the Neptune Avenue premises so as to have them vacate their apartments there.
On August 13, 2010, an action was filed by Neptune LLC against Neary, Benevento,
Carmel Salerno (Carmel), and the Estate of Julia (363-367 Neptune Avenue, LLC v Neary,
Sup Ct, Kings County, index No. 9282/10) (the Neptune Avenue action) for a judgment
requiring Neary, Benevento, and Carmel to vacate their apartments, requiring (*3]the
Estate of Julia to take action to remove Neary, Benevento, and Carmel from such
apartments, and awarding damages in the sum of $108,000 against Neary, $216,000
against Benevento, and $324,000 against Carmel due to their failure to vacate. In the
Neptune Avenue action, Neary and Benevento asserted that Burns had harassed them,
refused to make repairs to the building, and denied them essential services in an effort to
make the building uninhabitable so that they would be forced to vacate it. Neptune LLC, in
that action, contended that it was entitled to sell and vacate the Neptune Avenue premises
pursuant to the Operating Agreement for Neptune LLC. By a decision and order dated
December 15, 2010. Justice Mark I. Partnow denied a motion by Neptune LLC to require
Neary, Benevento, and Carmel to vacate the Neptune Avenue premises, finding that while
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Neptune LLC could elect to dissolve and sell the premises pursuant to the majority vote of
its members, it could not evict Neary, Benevento, and Carmel and was required to sell the
Neptune Avenue premises subject to their rent-stabilized leases.
In December 2010, Burns resigned as the manager of 2784 LLC, and Judice is now its
current manager. Burns claims that he and now Judice have been distributing 2784 LLC
funds from the sale of the 2784 premises pro rata to the members after enough cash is
accumulated and obligations paid, and that plaintiffs admit that they received distributions
as members. The Neptune Avenue premises have not yet been sold and Benevento and
Neary remain in occupancy as tenants there.
On March 18, 2011, plaintiffs filed the instant action, which initially named 2784 LLC and
Burns, along with McRory and McRory, PLLC and Raymond McRory, Esq. (collectively,
the McRory defendants), as defendants. On May 2, 2011, plaintiffs served a complaint,
and, on May 16, 2011, plaintiffs served an amended verified complaint as of right pursuant
to CPLR 3025 (a). Plaintiffs' amended complaint alleged that Burns, acting on behalf of
2784 LLC and his own personal interests, unilaterally and improperly diverted funds
belonging to 2784 LLC for purposes unrelated to it, including making payments in excess
of $200,000 to buy out the tenants who resided in the building at the Neptune Avenue
premises, and making payments of legal fees to the McRory defendants unrelated to 2784
LLC. It further alleged that Burns, acting on behalf of 2784 LLC and his own personal
interests, unilaterally and improperly withheld from the net proceeds realized from the sale
of the 2784 premises distributions due to them because they had not vacated their rent-
stabilized apartments at the Neptune Avenue premises. Specifically, plaintiffs alleged that
Burns withheld the sum of approximately $40,000 (as of the date of the amended
complaint) in partial distributions due to them from the sale of the 2784 premises. Plaintiffs
asserted that Burns, as the manager of 2784 LLC, owed them a fiduciary duty as members
of 2784 LLC.
Plaintiffs' amended complaint alleged three causes of action. Plaintiffs' first cause of action
against Burns and 2784 LLC sought an accounting of the affairs and monies of 2784 LLC.
Plaintiffs' second cause of action against Burns alleged that Burns diverted monies
belonging to 2784 LLC and withheld distributions due to them from the sale of rtlithe 2784
premises, which constituted a breach of his fiduciary duties to them. It sought a judgment
surcharging Bums in the amounts which are determined to be improperly diverted,
converted, and/or misappropriated. Plaintiffs' third cause of action against the McRory
defendants sought a judgment requiring them to disgorge all legal fees paid to them by
2784 LLC which were unrelated to 2784 LLC.
On September 15, 2011, Burns served an answer to plaintiffs' amended complaint, which
denied its material allegations and raised four affirmative defenses. Burns' first affirmative
defense alleged that plaintiffs' amended complaint fails to state a cause of action. Burns'
second affirmative defense alleged that the court should not proceed in the absence of
persons who should be parties. Burns' third affirmative defense alleged that Benevento
has no standing and is not a proper party to this action as he is a co-executor acting
without authority in relation to the Estate of Julia, who was the member of 2784 LLC, and
that Neary has no standing and is not a proper party to this action as he is a member of a
group called the Neary Group that is the member of 2784 LLC. Bums' third affirmative
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defense further alleged that plaintiffs' amended complaint should be dismissed for failure
to join indispensable parties. Burns' fourth affirmative defense alleged that the court lacks
subject matter jurisdiction over plaintiffs' claims.
Following discussions with the attorneys for the McRory defendants and limited document
production by them, plaintiffs, by a Stipulation of Discontinuance dated January 27, 2012,
discontinued this action as against the McRory defendants. On February 23, 2012, Grace
(who, as noted above, was Burns' mother and a member of 2784 LLC) died at the age of
99 years.
By notice of motion dated March 6, 2013, plaintiffs moved for a default judgment, pursuant
to CPLR 3215, against 2784 LLC. On April 4, 2013, plaintiffs withdrew that motion and
extended the time for 2784 LLC to serve an answer to their amended complaint in
exchange for its production of bank statements for its checking account, which 2784 LLC
produced in or about the end of May 2013. 2784 LLC has not yet interposed an answer to
plaintiffs' amended complaint.
On June 28, 2013, Burns produced some documents in response to a February 25, 2013
notice to produce for discovery and inspection which was served by plaintiffs. Plaintiffs
assert that their review of 2784 LLC's bank statements and other documents produced in
this action have revealed that they have direct claims against Burns and 2784 LLC for the
alleged wrongful withholding from them of over $80,000 in distributions due to them from
the net sale proceeds from the 2784 premises.
On September 11, 2013, plaintiffs moved for leave to serve an amended summons and
second amended verified complaint. Plaintiffs sought to amend the summons and first
amended complaint to delete the McRory defendants from the caption and to remove the
cause of action asserted as against them to reflect their voluntary discontinuance of all
claims against them. Plaintiffs further sought to amend the first amended complaint in
order to limit it to direct claims against 2784 LLC and Burns solely for wrongfully
["5]withholding from them over $80,000 in distributions due to them from the net sale
proceeds from the 2784 premises.
Plaintiffs' second amended verified complaint (annexed as exhibit A to plaintiffs' motion
papers in motion sequence number 2) alleges that Neary is a member of 2784 LLC, having
a 6.133% ownership interest therein. It further alleges that Benevento has a 9.2%
beneficial interest in 2784 LLC through the Estate of Julia, who was a member of 2784
LLC, having a 18.4% ownership interest therein, and that Benevento was and is the co-
executor of the Estate of Julia and is entitled to 50% of Julia's estate.
Plaintiffs' second amended complaint sets forth that on January 20, 2010, 2784 LLC,
under the sole and exclusive management of Burns, sold the 2784 premises to M & A
Realty Services, LLC for the sum of $1,050,000. It alleges that as of January 22, 2010, the
sum of $544,018.29 was available for distribution to 2784 LLC members from the net
proceeds of the sale of the 2784 premises, and that, as of March 9, 2010, distributions of
the net proceeds from the sale of the 2784 premises were made to 2784 LLC members,
including distributions paid directly to Neary and Benevento, as members. It asserts that
Burns, in breach of independent fiduciary duties he owed to Neary and Benevento in their
own, individual capacities, unilaterally and wrongfully withheld from them their fair share of
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distributions due to them from the net proceeds of this sale in violation of the Operating
Agreement and applicable Limited Liability Company Law. Specifically, it alleges that
Burns withheld from these sale proceeds the sum of $35,745.83 from Neary and the sum
of $44,831.58 from Benevento.
Plaintiffs' second amended complaint alleges three causes of action. Plaintiffs' first cause
of action against 2784 LLC alleges that 2784 LLC is in possession and control of the funds
wrongfully withheld from them by Burns from their share of distributions of the net sale
proceeds of the 2784 premises in violation of the Operating Agreement and applicable law,
and that they have been damaged in the total sum of $80,577.41, plus interest from March
9, 2010. Plaintiffs' second cause of action alleges a direct claim by Neary against Bums,
which asserts that Burns owed an independent fiduciary duty to Neary, as a member of
2784 with a 6.133% ownership interest, that Burns wrongfully withheld the sum of
$35,745.83 from his share of distributions from the net proceeds of the sale of the 2784
premises, and that he is entitled to a judgment in this sum. Plaintiffs' third cause of action
alleges a direct claim by Benevento against Burns, which asserts that Burns owed an
independent fiduciary duty to Benevento as a member of 2784 LLC with a 9.2% ownership
interest and/or as the holder of a 9.2% beneficial interest in 2784 LLC through the Estate
of Julia, that Burns wrongfully withheld the sum of $44,831.58 from his share of
distributions from the net proceeds of the sale of the 2784 premises, and that he is entitled
to a judgment in this sum.
On October 24, 2013, Burns filed his instant motion for an order dismissing plaintiffs'
amended verified complaint. In his motion papers, Bums opposed plaintiffs' r6]motion to
amend and sought an order denying plaintiffs' motion.[FN1] 2784 LLC has not submitted
any papers with respect to Burns' motion, and it took no position at oral argument
In support of their motion to amend, plaintiffs maintained that their proposed amendment
was meritorious since they were entitled to their full share of distributions from these sale
proceeds and that the withholding of over $80,000 from their distributions was wrongful
and improper. Moreover, no prejudice was demonstrated by Burns with respect to the
proposed amendment since it simply streamlines plaintiffs' amended complaint and does
not assert any new facts or causes of action against Bums. In addition, there could be no
prejudice to 2784 LLC since, as noted above, it has not as yet served an answer in this
action, and prejudice to warrant denial of leave to amend requires some indication that the
defendants were hindered in the preparation of their case or were prevented from taking
some measure in support of their position (see McGhee v Odell, 96 AD3d 449, 450 [1st
Dept 2012]; Kocourek v Booz Allen Hamilton Inc., 85 AD3d 502, 504 [1st Dept 2011]).
Furthermore, while there was a two-year delay by plaintiffs in seeking such leave,
discovery is ongoing, and depositions have not yet been held (see Rosicki, Rosicki &
Assoc., P.C. v Cochems, 59 AD3d 512, 514 [2d Dept 2009]).
Thus, since a motion for leave to amend a complaint should be freely granted, absent
prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed
amendment is palpably insufficient or patently devoid of merit (see CPLR 3025 [b]; Aurora
Loan Servs., LLC v Thomas, 70 AD3d 986, 987 [2d Dept 2010]; Lucido v Mancuso, 49
AD3d 220, 222 [2d Dept 2008], appeal withdrawn 13 NY3d 813 [2009]), and, here, the
proposed amendment was not palpably insufficient or patently devoid of merit and there
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was also no showing of prejudice or surprise resulting directly from plaintiffs' delay in
seeking leave, the court, at oral argument held on November 20, 2013, granted plaintiffs'
motion for leave to file their second amended verified complaint. While Burns' motion was
originally directed as against plaintiffs' first amended complaint, since the court has
granted plaintiffs' motion to amend their first amended complaint during the pendency of
Burns' motion, the court will address this motion as against plaintiffs' second amended
complaint (see 49 W. 12 Tenants Corp. v Seidenberg, 6 AD3d 243, 243 [1st Dept 2004];
Livadiotakis v Tzitzikalakis, 302 AD2d 369, 370 [2d Dept 2003]; Sage Realty Corp. v
Proskauer Rose, 251 AD2d 35, 38 (1st Dept 1998]).
DISCUSSION
In support of his instant motion, Bums argues that this action must be dismissed based
upon plaintiffs' lack of standing to sue. CPLR 3211 (a) (3) provides for dismissal [*7]of an
action where "the party asserting the cause of action has not legal capacity to sue." CPLR
3211(a) (3) also embraces the ground of the lack of standing to sue, and this statute is,
therefore, available to support a motion to dismiss on this ground (see Hecht v Andover
Assocs. Mgt. Corp., 2014 NY Slip Op 0063, *2 (2d Dept 2014]).
Burns, in arguing that plaintiffs lack standing to sue, relies upon the third affirmative
defense in his answer to the first amended complaint and contends that plaintiffs are not
proper parties and lack standing to sue 2784 LLC and him, as its former manager,
because they are allegedly not members of 2784 LLC in their individual capacities.
Burns argues that Neary is not a proper party and lacks standing to sue because the
member of 2784 LLC is the Neary Group, as opposed to Neary. He points to Schedule A
of the Operating Agreement (exhibit 2 to his motion papers), which lists the Neary Group
as consisting of three members with a 18.4% voting percentage interest, and the footnote
to that Schedule which states that the three Nearys (Weary, Salvatore, and Mary Ann)
have each contributed 100% of their respective undivided interest as tenants in common in
the 2784 premises to 2784 LLC, and that "[t]he Neary Group owns an 18.4% Member
Interest as a group," and "has appointed Mary Ann . . . to represent them in voting their
total 18.4% Voting Percentage Interest until otherwise notified in writing by them."
Burns' argument must be rejected. The membership interest of the Nearys was referred to
as the Neary Group simply because their interest in the 2784 premises derived from Anna
and thereafter passed to Neary and his two siblings, which formed the Neary Group. The
mere fact that Neary permitted Mary Ann to vote the collective 18.4% of the Neary Group
does not negate Neary's status as an individual member of 2784 LLC in his own individual
right with a 6.1333% (one-third of 18.4%) ownership interest. Indeed, Schedule A of the
Operating Agreement lists Neary separately as a "Member" and sets forth his residence
address and social security number. In fact, Neary was an initial member of 2784 LLC at
the time of its formation in 2006, and he signed the initial Operating Agreement and the
Amended and Restated Operating Agreement as an "Initial Member' (see exhibit A to
plaintiffs' opposition papers). Additionally, Neary, by an e-mail dated February 24, 2010
(exhibit C to plaintiffs' opposition papers), gave Burns written notice of his intent to vote his
own 6.133% membership interest separately. Thus, Neary has established that he is, in
fact, an individual member of 2784 LLC and entitled to maintain this action in his own right
without the joinder of the other members of the Neary Group.
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Burns further asserts that Benevento is not a member of 2784 LLC, but, rather, the
member is the Estate of Julia. He argues that Benevento cannot claim a payment allegedly
due to the Estate of Julia. He states that while Benevento is a co-executor of the Estate of
Julia, he is not acting on behalf of the Estate with his brother, Anthony, who is the co-
executor.
This argument by Burns is unavailing since Benevento is not making a claim on ralbehaff
of the Estate of Julia, but in his own right as the holder of a beneficial interest of 9.2% of
2784 LLC. Benevento does not seek to recover sums due to the Estate of Julia. Rather, he
seeks to recover distributions from the sale of the 2784 premises owed to him individually
which, he claims, Burns wrongfully withheld from him by making deductions to his share of
such sale proceeds because he resides as a rent-stabilized tenant at the Neptune Avenue
premises. This claim belongs to Benevento and is not shared by Anthony, the other
beneficiary and the co-executor of the Estate of Julia, who is not a tenant at the Neptune
Avenue premises and received his full share of such proceeds without any deductions.
Thus, Benevento, and not the Estate of Julia, is the real party in interest in this
litigation.Moreover, it is undisputed that Benevento is the transferee of one-half of the
interest held by Julia, and, thus, the holder of a "beneficial interest" in 2784 LLC. Such a
beneficial interest has been recognized as conferring standing upon a party to bring a
derivative action on behalf of a corporation pursuant to Business Corporation Law § 626
(a) (see Bernfeld v Kurilenko, 91 AD3d 893, 894 [2d Dept 2012]; Shui Kam Chan v Louis,
303 AD2d 151, 152 [1st Dept 2003]), which has been held applicable to limited liability
companies (see Tzolis v Wolff, 10 NY3d 100, 121 [2008]). While this is not a derivative
action, this beneficial interest likewise furnishes a basis for Benevento's individual claims
against 2784 LLC and Burns, and the fact that Benevento obtained his interest through the
Estate of Julia does not deprive him of standing in this action (see Bernfeld, 91 AD3d at
894).
Furthermore, Burns previously recognized and acknowledged both Neary and Benevento
as members of 2784 LLC. An e-mail by Burns dated February 9, 2009 (exhibit B to
plaintiffs' opposition papers) stated that "the three Nearys . . . are direct owners" of 2784
LLC. An e-mail by Burns dated February 22, 2010 (exhibit 6 to Burns' motion papers)
regarding distributions sent to Neary and Benevento inquired as to "[h]ow do the Nearys
want their checks" and whether they wanted "[o]ne to Mary Ann or 1/3 to each sib[ling]."
Burns, in this e-mail, further inquired as to how he should distribute Julia's funds, noting
that the checks would have to be made out to her Estate, and he asked whether he should
issue two checks, or one each with the co-executors name also on the check. He
additionally stated, in this e-mail, that he "only want[ed] to hear from members," that "title
Nearys should elect if they want to vote as a group or individually," and that the
Beneventos will have to decide themselves." By an e-mail dated February 24, 2010
(exhibit C to plaintiffs' opposition papers), Neary responded that he wanted the check
issued to him.
Significantly, plaintiffs point out that Bums has already issued separate checks to them in
payment of their distributions of the net sale proceeds, and that they are now simply
complaining that they did not receive the full amount due to them. Burns, in paragraph 17
of his attorney's affirmation in support of his motion, admits that plaintiffs have "received
distributions." Thus, by such distributions, Bums has acknowledged Neary's membership
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interest and Benevento's beneficial membership in 2784 LLC and [*9]their rights to receive
such distributions.
Notably, in the December 15, 2010 decision and order in the Neptune Avenue action,
Justice Partnow previously acknowledged that Neary is a member of Neptune LLC and
that Benevento has a beneficial interest in Neptune LLC. Burns. in his attorney's
affirmation, has admitted that both Neptune LLC and 2784 LLC "have identical members
with only a slight difference in percentage ownership." Therefore, it follows that Neary is a
member of 2784 LLC in his own right in the same way that he is a member of Neptune
LLC, and that Benevento holds a beneficial interest in 2784 LLC in his own right in the
same way that he holds a beneficial interest in Neptune LLC.
Thus, Neary and Benevento do not lack standing to maintain this action. Dismissal of this
action, pursuant to CPLR 3211 (a) (3), must, therefore, be denied.
Burns further contends that plaintiffs have failed to join the other members of 2784 LLC
and that, therefore, this action must be dismissed, pursuant to CPLR 3211 (a) (10), which
provides for the granting of dismissal of a claim against a party based upon the ground that
"the court should not proceed in the absence of a person who should be a party."
This contention by Burns is devoid of merit since plaintiffs' second amended complaint
asserts direct claims by plaintiffs to recover for distinct injuries that they individually
sustained by Burns' alleged wrongful withholding of their proportionate share of
distributions of the net proceeds from the sale of the 2784 premises. Plaintiffs are thus
alleging claims based upon the breach of a duty owed directly to them, independent of any
duty owed to 2784 LLC or any of its other members (see generally Abrams v Donati, 66
NY2d 951, 953 [1985], rearg denied 67 NY2d 758 [1986]; Behrens v Metropolitan Opera
Assn., Inc., 18 AD3d 47, 50 (1st Dept 2005]; Lawrence Ins. Group, Inc. v KPMG Peat
Marwick LLP, 5 AD3d 918, 919 [3rd Dept 2004]). Plaintiffs do not seek to recover any
sums that may be due to the other members of 2784 LLC or for any damage to 2784 LLC.
Plaintiffs' claims relate only to their own direct claims as against Burns and 2784 LLC and,
as a result, do not require the joinder of the other members of 2784 LLC. Consequently,
dismissal of plaintiffs' action for failure to join necessary parties must be denied.
Burns also contends that this action must be dismissed, pursuant to CPLR 3211 (a) (7),
based upon plaintiffs' failure to state a cause of action. "It is well settled that, as a general
rule, on a motion to dismiss the complaint for failure to state a cause of action under CPLR
3211 (a) (7), the complaint must be construed in the light most favorable to the plaintiff"
(Gruen v County of Suffolk, 187 AD2d 560, 562 [2d Dept 1992]; see also Rosen v
Watermill Dev. Corp., 1 AD3d 424, 425 [2d Dept 2003]), and the pleading is to be afforded
a liberal construction (CPLR 3026). The court must also accept the facts as alleged in the
complaint and submissions in opposition to the motion as true and accord the plaintiff "the
benefit of every possible favorable inference" (Sokoloff v Harriman Estates Dev. Corp., 96
NY2d 409. 414 [2001]; see also Thomas v LaSalle Bank N.A., 79 [*10]AD3d 1015, 1017
[2d Dept 2010]). The court, in accepting the facts alleged in the complaint to be true, must
" determine only whether the facts alleged fit within any cognizable legal theory"' (Ruffino v
New York City Tr. Auth., 55 AD3d 817, 818 [2d Dept 2008], quoting Morris v Morris, 306
AD2d 449, 451 [2d Dept 2003]; see also Hurrell-Harring v State of New York, 15 NY3d 8,
20 [2010]; Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]).
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Burns argues that plaintiffs have failed to state a cause of action because there was no
wrongdoing by him. Burns' attorney asserts that Bums sent e-mails discussing at length
that 2784 LLC would give a loan to Neptune LLC and that this loan was authorized by the
members. She further asserts that there is no damage to any member because the
$250,000 loaned by 2784 LLC is earning interest at five percent and is secured by the real
estate, and that when the Neptune Avenue premises are sold, the mortgage will be paid to
2784 LLC with interest and all of the members of both 2784 LLC and Neptune LLC will
receive their pro rata shares. She also states that plaintiffs received payments at the same
time and "in pro rata amounts as the other members."
The second amended complaint, however, does not challenge the $250,000 loan made by
2784 LLC to Neptune LLC and does not allege that the sale of the 2784 premises was
unauthorized. Rather, plaintiffs assert that Burns wrongfully deprived them of their fair
share of the distributions from the net proceeds of the sale of these premises. Specifically,
plaintiffs contend that Burns unilaterally and wrongfully withheld sums from their individual
distributions because of their refusal to vacate their rent-stabilized apartments at the
Neptune Avenue premises. Plaintiffs have annexed a letter by Burns dated March 9, 2010
(exhibit E to plaintiffs' opposition papers), which establishes that Burns, referring to
Benevento and Neary's apartments at the Neptune Avenue premises, unilaterally
deducted from their individual distributions of the net sale proceeds of the 2784 premises
that were issued by 2784 LLC in March 2010, amounts for "disparate benefits" that Burns
claims they received by virtue of their rent-stabilized tenancies at the Neptune Avenue
premises. This letter shows that in contrast to the distributions to plaintiffs, these sums
were not deducted from the distributions received by the other two Neary members
(Salvatore and Mary Ann), Anthony (Benevento's brother), or Grace, who were paid their
distributions in full.
Burns further argues that he should be absolved from liability pursuant to article 4.5 of the
Operating Agreement (exhibit 7 to Burns' motion papers), which provides as follows:
"A Manager shall not be personally liable to the Company or its Members for damages
for any breach of duty as a Manager, except for any matter in respect to which such
Manager shall be liable by reason that, in addition to any and all other requirements for
such liability, there shall have been a judgment or other final adjudication adverse to such
["11]Manager that establishes that such Manager's acts or omissions were in bad faith or
involved intentional misconduct or a knowing violation of law or that such Manager
personally gained in fact a financial profit or other advantage to which such Manager was
not legally entitled or that with respect to a distribution the subject of Section 508 of the
[Limited Liability Company Law], such Manager's acts were not performed in accordance
with Section 409 of the [Limited Liability Company Law] . . ."
Limited Liability Company Law § 508 refers to limitations on distributions to members.
Limited Liability Company Law § 409 (a) provides that "[a] manager shall perform his or
her duties as a manager, including his or her duties as a member of any class of
managers, in good faith and with that degree of care that an ordinarily prudent person in a
like position would use under similar circumstances."
Burns contends that he did not act in bad faith or engage in intentional misconduct.
However, plaintiffs' allegations, which must be deemed true for purposes of this motion,
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sufficiently allege such bad faith, asserting that Burns acted "maliciously, wrongfully, and
unlawfully," and in breach of his fiduciary duties. Thus, despite Burns' attorney's argument
that Burns acted properly, questions of fact are raised as to this issue.
Burns additionally argues that he is entitled to be indemnified and reimbursed for the
expenses which he has incurred related to this litigation pursuant to article 4.7 of the
Operating Agreement (exhibit 7 to Burns' motion papers), which provides that "[t]he
Company shall indemnify and hold harmless each Manager and the Members from and
against all claims and demands to the maximum extent permitted under the [Limited
Liability Company Law]."
Burns requests that his motion "serve as a cross claim" against 2784 LLC for his legal fees
and indemnification pursuant to article 4.7 of the Operating Agreement. Such a request is
procedurally improper. Burns has not yet interposed an answer to plaintiffs' second
amended complaint nor did he include a cross claim against 2784 LLC for indemnification
in his answer to plaintiffs' first amended complaint. Moreover, there has been no final
adjudication on the issue of whether Bums breached his duties under the Operating
Agreement, and such a finding would defeat his claim for indemnification pursuant to
Limited Liability Company Law § 420, which provides as follows:
"Subject to the standards and restrictions, if any, set forth in its operating agreement, a
limited liability company may, and shall have the power to, indemnify and hold harmless,
and advance expenses to, any member, manager or other person, or any testator or
intestate of such member, manager or other person, from and against any and all claims
and demands r121whatsoever; provided, however, that no indemnification may be made
to or on behalf of any member, manager or other person if a judgment or other final
adjudication adverse to such member, manager or other person establishes (a) that his or
her acts were committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated or (b) that he or she personally
gained in fact a financial profit or other advantage to which he or she was not legally
entitled."
Consequently, Burns' request for indemnification and reimbursement under the Operating
Agreement must be denied as premature (see Limited Liability Company Law § 420).
CONCLUSION
Accordingly, Bums' motion is denied in its entirety.
This constitutes the decision and order of the court.
ENTER,
J. S. C.
Footnotes
Footnote 1:Subsequent to oral argument, the court received a purported "reply" to Bums'
motion to dismiss which included further opposition to plaintiffs' proposed amendment to
their amended complaint. These papers have been rejected by the court and have not
been considered (see CPLR 2214 [b], [c]).
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For further information please visit: http://www.nycourts.gov/
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PUBLICATION-TYPE: Newswire
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Public Records:
1 OF 4 RECORD(S)
Comprehensive Business Report
Report Created:6-15-2017 6.30 PM EST I FOR INFORMATIONAL PURPOSES ONLY I Copyright O 2017 LexisNexis,
All rights reserved.
Search Terms - company(Neptune, LLC)tin(45-4093384) radius(15)
Executives - Current (7) Incorporation/SOS (3) Operations/Sites (12) Sales (0)
Licenses (1) URLs (1) Real Property - Current (1) Real Property • Prior (7)
MVRs - Current (0) MVRs - Prior (0) Watercraft - Current (0) Watercraft - Prior (0)
Aircraft - Current (0) Aircraft • Prior (0) Bankruptcy Filings (0) Judgments 8 Liens Filings (0)
UCC Filings (5) Executives • Prior (3) Registered Agents (3) Name Variations (6)
Possible Employees (1) Person Associates (I) Business Associates (5) TINs (3)
Possible Connected Parent Company (0) Industry Information (1)
Business (45)
View All Sources (131)
Business Summary
Name Address Phone
NEPTUNE. LLC 608 S 19th St 813-645-6815
West Des Moines, IA 50265-5505
'II (Most Recent Listing)
Polk County 01/01/2014 • 06/13/201?
© (Business)
LexID Established TIN
0001-0323-9036 1968 42-1610539
(49 Years in Business)
At a Glance
Real Property 1 UCC Debtor 3
Personal Property 0 Bankruptcy 0
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Page 2
Secured Assets 0 Judgments/Liens 0
Executives 7 Foreclosure/Notice of Default 0
Name Variations - 6 name variations found
NO. NAME
1. NEPTUNE. LLC
2. NEPTUNE CYCLERY
3. NEPTUNE CYCLERY AND NEPTUNE LOUNGE
4. NEPTUNE HOLDING CORP
5. NEPTUNE HOLDINGS CORP
6. NEPTUNE LOUNGE INC
TINs - 3 TINs found
NO. TIN NAME
1. 42-1610539 NEPTUNE CYCLERY INC
NEPTUNE LLC
2. 59-1230185 NEPTUNE LOUNGE INC
3. 59-3260260 NEPTUNE
NEPTUNE CYCLERY INC
NEPTUNE HOLDINGS CORP
NEPTUNE LOUNGE
Business Profile
Executives. Current - 7 executive(s) found
NO. NAME TITLE
1. Bowen, Katherine H PRESIDENT (03/31/2008 - 12/05/2016)
th Associated with Other Companies
ADeceased
2. Callison, Wesley D - MEMBER (03/31/2008 - 04/27/2016)
- MANAGER (12/01/2003)
3. Charpie, David S - SECRETARY (03/31/2008 - 0427/2016)
- PRINCIPAL
/ Moderate Risk
it
Associated with Other Companies
4. Griffis. Jesse G VICE PRESIDENT (12/14/1982 - 12/05/2016)
5. Mchose, Richard R MEMBER (01/24/2014 - 04/27/2016)
6. Moore, Aixa - MEMBER (03/31/2008 - 04/27/2016)
it Associated with Other Companies - MANAGER (12/012003)
7. Mullally, Edward R - PRESIDENT (03/31/2008 - 04/27/2016)
- OWNER (02/1998)
/ Moderate Risk
Inco • oration/SOS 2 active, 1 other
NO. NAME FILING TYPE STATUS FILING FILING NO. STATE
DATE
1 NEPTUNE, LLC LIMITED LIABILITY ACTIVE 12/01/2003 L0300005020 FL
CORPORATION
Additional Details
Business Type: LIMITED LIABILITY CORPORATION
Business Status: ACTIVE
For Profit: Unknown
Foreign/Domestic: Domestic
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Origin: State of FL
2. NEPTUNE HOLDINGS CORPORATION- ACTIVE 08/01/1994 P9400005715 FL
CORP. BUSINESS 3
Additional Details
Business Type: CORPORATION-BUSINESS
Business Status: ACTIVE
For Profit: Yes
Foreign/Domestic: Domestic
Origin: State of FL
3. NEPTUNE LOUNGE INC CORPORATION- INACTIVE 12/10/1968 338721 FL
BUSINESS
Additional Details
Business Type: CORPORATION-BUSINESS
Business Status: INACTIVE
For Profit: Yes
Foreign/Domestic: Domestic
Origin: State of FL
OperatingLocations - Showing 12 location(s)
NO. ADDRESS METRO AREA PHONE
1. 10522 Scott Mill Rd Jacksonville, FL
Jacksonvile, FL 32257-6263
Duval County
2. 103 Atlantic Blvd Jacksonville, FL
Neptune Beach, FL 32266-5251
Duval County
3. 6601 Blackfin Way Tampa-St. 727-943-5805
Apollo Beach, FL 33572-3029 Petersburg-
4. (Most Recent Listing)
Hillsborough County Clearwater, FL 07/012013.06/132017
8
(Business)
813-645-6815
tid (Most Recent Listing)
Of/01/2014 - 06/ t 32017
®(Business)
4. 1112 Neptune Dr Tampa-St.
Ruskin. FL 33570-2768 Petersburg-
Hillsborough County Clearwater, FL
5. 13 S Safford Ave Tampa-St. 727-943-5805
Tarpon Spnngs, FL 34689-3456 Petersburg-
# (Most Recent Listing)
Pinellas County Clearwater, FL 07/012013.06/132017
(Business)
727-943-5713
/ (Phone Ds-Listed in Electronic
Directory Assistance)
813-943-5805
6. 1721 Sunset Dr Tampa-St.
Tarpon Springs, FL 34689-2239 Petersburg-
Pinellas County Clearwater, FL
7. 232 Butler Dr PUTNAM COUNTY
Satsuma. FL 32189-2103
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Putnam County
8. 445-26 Sr 13 445 27 N Jacksonville. FL
Jacksonville, FL 32259
St. Johns County
9. 445-26 Sr 13 445-27 N Jacksonville, FL
Jacksonville, FL 32259
St. Johns County
10. 24168 140th St DICKINSON
Spirit Lake, IA 51360-7045 COUNTY
Dickinson County
11. 608 S 19th St Des Moines. IA
West Des Moines, IA 50265-5505
Polk County
12. Rr 1 STORY COUNTY
Cambridge. IA 50046
Story County
Sales - 0 record(s) found
Parent Company - 0 record(s) found
Industry Information
SIC NAIC
3751 Motorcycles, Bicycles, And Parts 336991 Motorcycle. Bicycle, and Parts
Manufacturing
5813 Drinking Places 45111 Spoiling Goods Stores
5941 Sporting Goods And Bicycle Shops 451110 Sporting Goods Stores
7699 Repair Services. Nec 722410 Drinking Places (Alcoholic
Beverages)
9999 Nonclassifiable Establishments
Industry Description: BICYCLES REPAIR
Business Description: MOTORCYCLES, BICYCLES & PARTS
Licenses -1 licenses found
NO. LICENSE NO. DESCRIPTION ISSUER ISSUED/EXPIRED
1. BEV6209000 FL Expired: 09/30/2004
URLs -1 URLs found
THENEPTUNELOUNGE.CCM
Bankruptcy (0 active, 0 closed)
Judgments/Liens (0 filings)
UCC Filings (5 debtor, 0 credito
NO. ROLE STATUS ORIG. ORIG. FILE JURISDICTI FILE TYPE
FILING NUMBER ON
DATE
1. Debtor Active 12/02/1996 960000252858 FL Initial Filing
Filing Office Information
SECRETARY OF STATE/UCC DIVISION
State Capitol
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Tallahassee, FL 32314
Filing 1
Filing Number 960000252858
Filing Date: 12/02/1996
Filing Type: INITIAL FILING
Debtor 1
NEPTUNE CYCLERY AND NEPTUNE LOUNGE
13 S Safford Ave
Tarpon Springs. FL 34689-3456
Secured Party Info 1
MERCANTILE BANK
28100 Us Highway 19 N
Clearwater. FL 33761-2635
Collateral
ACCOUNT(S) AND PROCEEDS;BUILDING MATERIALS AND
PROCEEDS:FIXTURES AND PROCEEDS:COMMUNICATIONS
EQUIPMENT AND PROCEEDS;INVENTORY AND
PROCEEDS;BUILDING(S) AND PROCEEDS:TIMBER AND
PROCEEDS:FARM PRODUCTS/CROPS AND PROCEEDS:OIL, GAS AND
MINERALS AND PROCEEDS;CONTRACT RIGHTS AND
PROCEEDS;MACHINERY AND PROCEEDS;EQUIPMENT AND
PROCEEDS
2. I Debtor I Active 111/22/1996 [960000245697 FL Continuation
Filing Office Information
SECRETARY OF STATE/UCC DIVISION
State Capitol
Tallahassee, FL 32314
Filing 2
Filing Number 200100146806
Filing Date: 07/03/2001
Filing Type: CONTINUATION
Debtor 1
Cyclery, Neptune
13 S Safford Ave
Tarpon Springs. FL 34689-3456
Secured Party Info 1
IFS FUNDING CORP
801 W Madison St
Waterloo, WI 53594-1379
Filing 1
Filing Number 960000245697
Filing Date: 11/22J1996
Filing Type: INITIAL FILING
Debtor 1
For internal use only
SDNY_GM_00059721
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Page 6
Cyclery, Neptune
13 S Safford Ave
Tarpon Springs. FL 34689-3456
Secured Party Info 1
IFS FUNDING CORP.
801 W Madison St
Waterloo. WI 53594-1379
Collateral
INVENTORY INCLUDING PROCEEDS AND PRODUCTS
3. [Debtor lAcbve 110/28/1996 j960000227777 FL Initial Filing
Filing Office Information
SECRETARY OF STATE/UGC DIVISION
State Capitol
Tallahassee, FL 32314
Filing 1
Filing Number 960000227777
Filing Date: 10/28/1996
Filing Type: INITIAL FILING
Debtor 1
NEPTUNE CYCLERY AND NEPTUNE LOUNGE
13 S Safford Ave
Tarpon Springs, FL 34689-3456
Secured Party Info 1
MERCANTILE BANK
28100 Us Highway 19 N
Clearwater, FL 33761-2635
Collateral
INVENTORY INCLUDING PROCEEDS AND PRODUCTS:EQUIPMENT
INCLUDING PROCEEDS AND PRODUCTS:FIXTURES INCLUDING
PROCEEDS AND PRODUCTS:GENERAL INTANGIBLE(S) INCLUDING
PROCEEDS AND PRODUCTS;CHATTEL PAPER INCLUDING
PROCEEDS AND PRODUCTS:ACCOUNTS RECEIVABLE INCLUDING
PROCEEDS AND PRODUCTS:MACHINERY INCLUDING PROCEEDS
AND PRODUCTS;ACCOUNT(S) INCLUDING PROCEEDS AND
PRODUCTS
4. !Debtor 'Closed 112/03/1996 1960000252858 FL Termination
Filing Office Information
SECRETARY OF STATE/UCC DIVISION
State Capitol
Tallahassee, FL 32314
Filing 2
Filing Number 200190658175
Filing Date: 12/28/2001
Filing Type: TERMINATION
For internal use only
SDNY_GM_000 59722
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Page 7
Debtor 1
Cyclery, Neptune
13 S Safford Ave
Tarpon Springs, FL 34689-3456
Secured Party Info 1
MERCANTILE BANK
28100 Us Highway 19 N
Clearwater, FL 33761-2635
Filing 1
Filing Number 200100127822
Filing Date: 06/11/2001
Filing Type: CONTINUATION
Debtor 1
NEPTUNE CYCLERY AND NEPTUNE LOUNGE
13 S Safford Ave
Tarpon Springs, FL 34689-3456
Secured Party Info 1
MERCANTILE BANK
28100 Us Highway 19 N
Clearwater, FL 33761-2635
5. I Debtor I Closed l 10/30/1996 1960000227777 FL Termination
Filing Office Information
SECRETARY OF STATEIUCC DIVISION
State Capitol
Tallahassee, FL 32314
Filing 2
Filing Number 200190658183
Filing Date: 12/28/2001
Filing Type: TERMINATION
Debtor 1
Cyclery, Neptune
13 S Safford Ave
Tarpon Springs, FL 34689-3456
Secured Party Info 1
MERCANTILE BANK
28100 Us Highway 19 N
Clearwater, FL 33761-2635
Filing 1
Filing Number 200100125404
Filing Date: 06/08/2001
Filing Type: CONTINUATION
Debtor 1
Cyclery, Neptune
For internal use only
SDNY_GM_000 59723
IDENTIAL
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13 S Safford Ave
Tarpon Springs, FL 34689-3456
Secured Party Info 1
MERCANTILE BANK
28100 Us Highway 19 N
Clearwater, FL 33761-2635
Real Property (1 current, 7 prior
NO. ADDRESS STATUS PURCHASE PRICE SALE PRICE STATE
1. 1110 Neptune Dr Current $622,000.00 FL
Ruskin, FL 33570-2768
Hillsborough County
Source: B
Owner 1 Information
LEHIGH CLAY PROPERTIES LTD
608 S 19th St
West Des Moines, IA 50265-5505
Polk County
Legal Information
Parcel Number U123218Z7_Z000001094400
Assessment Year: 2016
Recording Date: 12102/2003
Document Type: ASSESSOR
Assessed Value: $641,575.00
Market Land Value: $285,079.00
Total Market Value: $643.533.00
Type of Address: SINGLE FAMILY RESIDENTIAL
2. FL Prior FL
Hillsborough County
Source: B
Owner 1 Information
NEPTUNE LLC
6601 Blackfin Way
Apollo Beach, FL 33572-3029
Hillsborough County
Seller 1 Information
Farrington, Michael
6520 Santiago Ct
Apollo Beach, FL 33572-2112
Hillsborough County
Seller 2 Information
Farrington, Mike
6520 Santiago Ct
Apollo Beach, FL 33572-2112
Hillsborough County
For internal use only
SDNY_GM_00059724
IDENTIAL
CONFIDENTIAL - PURSUANT TO FED. R.QQN(F DB-SDNY-0022548
EFTA_00 170274
EFTA01296908

Pa-c ()
Legal Information
Recording Date: 01/11/2006
Document Type: DEED
Mortgage 1 Information
Recording Date: 01/11/2006
Contract Date: 12/21/2005
Description. CORRECTION DEED
Mortgage 2 Information
Recording Date: 09/24/2004
Contract Date: 08/31/2004
Loan Amount $145,000.00
Lender Name: MICHAEL FARRINGTON
Description: WARRANTY DEED
3. 1007 Neptune Dr Prior FL
Ruskin, FL 33570-2706
Hillsborough County
Source: B
Owner 1 Information
NEPTUNE LLC
608 S 19th St
West Des Moines, IA 50265-5505
Polk County
Legal Information
Parcel Number U123218ZZZ000001093800
Assessment Year 2008
Recording Date: 12212005
Document Type: ASSESSOR
Assessed Value: $92,045.00
Market Land Value: $39.960.00
Total Market Value: $92,045.00
Type of Address. SINGLE FAMILY RESIDENTIAL
4. Ruskin, FL 33570 Prior FL
Hillsborough County
Source: B
Owner 1 Information
NEPTUNE LLC
608 S 19th St
West Des Moines, IA 50265-5505
Polk County
Legal Information
Parcel Number. U123218ZZ2000001093700
Assessment Year: 2009
Recording Date: 12/21/2005
Document Type: ASSESSOR
Assessed Value: $74:025.00
For internal use only
SDNY_GM_00059725
IDENTIAL
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EFTA 00170275
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Pace lu
Market Land Value: $74,025.00
Total Market Value: $74.025.00
Type of Address: VACANT (GENERAL)
5. 1016 Neptune Dr Prior $622,000.00 FL
Ruskin, FL 33570-2705
Hillsborough County
Source: B
Owner 1 Information
LEHIGH CLAY PROPERTIES LIMITED
608 S 19th St
West Des Moines, IA 50265-5505
Polk County
Legal Information
Parcel Number U123218272000001094400
Assessment Year. 2008
Sale Price: $622,000.00
Recording Date: 12/02/2003
Document Type: ASSESSOR
Assessed Value: $951,246.00
Market Land Value: $540,100.00
Total Market Value: $951,246.00
Type of Address: MOBILE HOME
6. FL Prior FL
Pinellas County
Source: B
Owner 1 Information
NEPTUNE HOLDINGS CORPORATION
1721 Sunset Dr
Tarpon Springs, FL 34689-2239
Pinellas County
Legal Information
Recording Date: 01/04/1995
Document Type: DEED
Mortgage 1 Information
Recording Date: 01/04/1995
Contract Date: 11/08/1994
7. 13 Safford Ave Prior $100,000.00 FL
Tarpon Springs, FL 34689
Pinellas County
Source: B
Owner 1 Information
NEPTUNE HOLDINGS CORP
1721 Sunset Dr
Tarpon Springs, FL 34689-2239
Pinellas County
For internal use only
SDNY_GM_000 59726
IDENTIAL
CONFIDENTIAL - PURSUANT TO FED. R.CON(F DB-SDNY-0022550
EFTA_00I 70276
EFTA01296910

l'atrn I I
Legal Information
Parcel Number 12-27-15-77778-401.0150
Assessment Year: 2016
Sale Price: $100,000.00
Recording Date: 09/02/1994
Document Type: ASSESSOR
Assessed Value: $187,000.00
Market Land Value: $44,545.00
Total Market Value: $187,000.00
Type of Address: SHOPPING CENTER (NEIGHBORHOOD - STRIP)
8. 13 Safford Ave Prior FL
FL
Pinellas County
Source: B
Owner 1 Information
NEPTUNE HOLDINGS CORPORATION
1721 Sunset Dr
Tarpon Springs, FL 34689-2239
Pinellas County
Legal Information
Parcel Number 12-27-15-77778-401-0150
Assessment Year: 2008
Document Type: ASSESSOR
Assessed Value: $185,000.00
Market Land Value: $48,100.00
Total Market Value: $185,000.00
Type of Address: SHOPPING CENTER (NEIGHBORHOOD - STRIP)
Personal Property (0 current, 0 prior)
Associates
Executives. Prior - 3 prior executives) found
NO. NAME TITLE
1. Callison, Wesley D OFFICER
2. Halve. Loren MEMBER
i Moderate Risk (03/3112008 - 01/302009)
It Associated with Other Companies
ADeceased
3. Pearey, Elwin MEMBER
(03/31/2008 - 01/30/2009)
Registered Agents - 3 registered agent(s) found
NO. NAME ADDRESS STATE DATE(S)
1. Bowen, Katherine H Florida 12/14/1982 -
12/052016
2. Callison, Wesley D Florida 12/05/2016
For internal use only
SDNY_GM_00059727
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3. Charpie, David S Florida 09/27/1995 -
12/052016
Possible Employees - 0 current, 1 prior employees found
NO. NAME ADDRESS STATUS DATE S
1. Callison, D Prior
MANAGER 12/01(2003
Person Associates - 1 other person associates found
NO. NAME ADDRESS ROLE
1. Farrington. Michael Real Property
/ Moderate Risk
Possible Connected Business - 45 businesses found
NO. NAME ADDRESS
1. NEP TUEN RECORDS 1501 S Dale Mabry Hwy
Tampa, FL 33629-5837
Hillsborough County
2. NEPTUNE Tampa, FL
3. NEPTUNE 160 Live Oak Woods Ct
Deltona, FL 32725-8926
4. NEPTUNE 2088 Central Ave
Fort Myers. FL 33901-3917
Lee County
5. NEPTUNE 2310 Estero Blvd
Fort Myers Beach. FL 33931-3221
Lee County
6. NEPTUNE 4401 Westown Pkwy Ste 226
West Des Moines, IA 50266-6721
7. NEPTUNE 782750 O/5 Hwy
Islamorada. FL 33036
Monroe County
8. NEPTUNE 796 NW 57th St
Fort Lauderdale, FL 33309-2825
Broward County
9. NEPTUNE 850 NW 155th Ln Apt 301
Miami, FL 33169.6166
Miami-Dade County
10. NEPTUNE 1 LLC PO Box 25177
Miami, FL 33102.5177
Miami-Dade County
11. NEPTUNE CORP PO Box 398570
Miami Beach, FL 33239-8570
Miami-Dade County
12. NEPTUNE CORP 1058 SE Port St Lude Blvd
Port Saint Lucie, FL 34952-5377
St. Lucie County
13. NEPTUNE CORP 1910 SE Port St Lude Blvd
Port Saint Lucie, FL 34952-5581
St. Lucie County
14. NEPTUNE CORP 610 SW Bayshore Blvd
Port Saint Lucie, FL 34983.1864
St. Lucie County
15. NEPTUNE CORPORATION 139 N County Rd
Palm Beach. FL 33480-3908
For internal use only
SDNY_GM_00059728
IDENTIAL
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Page 13
Palm Beach County
16. NEPTUNE CORPORATION OF THE THE 1058 SE Pod St Lucie Blvd
Port Saint Lucie, FL 34952-5377
St. Lucie County
17. NEPTUNE ENTERPRISES, INC. PO Box 6446
Key West, FL 33041-6446
Monroe County
18. NEPTUNE HOLDING CO INC PO Box 1938
Marco Island, FL 34146-1938
Collier County
19. NEPTUNE HOLDING CORP 2887 SW 69th Ct
Miami. FL 33155-2816
Miami-Dade County
20. NEPTUNE HOLDING CORP. 3950 SW 136th Ave
Miramar. FL 33027-2746
Broward County
21. NEPTUNE HOLDINGS 420 Lincoln Rd Ste 245
Miami Beach, FL 33139-3035
Miami-Dade County
22. NEPTUNE HOLDINGS LLC 1921 Trade Center Way Ste 1
Naples, FL 34109-6600
Collier County
23. NEPTUNE INC 12250 Hammock Creek Way
Fort Myers, FL 33905-6247
Lee County
24. NEPTUNE INC 17320 NW 80th Ave
Hialeah, FL 33015-3835
Miami-Dade County
25. NEPTUNE INC 3536 NE 168th St Apt 407
North Miami Beach, FL 33160-3576
Miami-Dade County
26. NEPTUNE LIMITED, INC. 1217 Cape Coral Pkwy E
Cape Coral, FL 33904-9604
Lee County
27. NEPTUNE LLC PO Box 237237
Cocoa, FL 32923-7237
Brevard County
28. NEPTUNE LLC 1016 Neptune Dr
Ruskin, FL 33570-2705
Hillsborough County
29. NEPTUNE LLC 1016 Neptune Dr Apt 10
Ruskin. FL 33570-2705
Hillsborough County
30. NEPTUNE LLC 358 El Brillo Way
Palm Beach. FL 33480-4730
Palm Beach County
31. NEPTUNE LLC 405 2nd St S Ste C
Safety Harbor, FL 34695-4054
Pinellas County
32. NEPTUNE LOUNGE PO Box 578
New Smyrna Beach, FL 32170-0578
Volusia County
33. NEPTUNE LOUNGE INC PO Box 122
Atlantic Beach, FL 32233
Duval County
34. NEPTUNE LOUNGE INC PO Box 122
Neptune Beach. FL 32266
Duval County
35. NEPTUNE LOUNGE INC 10911th St
Atlantic Beach, FL 32233-5751
For internal use only
SDNY_GM_00059729
IDENTIAL
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Page 14
Duval County
36. NEPTUNE LOUNGE INC 109 11th St
Neptune Beach, FL 32266-3374
Duval County
37. NEPTUNE LOUNGE LLC 918 Railroad Avenue A
Avon Park, FL 33825
Highlands County
38. NEPTUNE LTD. 1543 SW 2nd St
Miami, FL 33135-2106
Miami-Dade County
39. NEPTUNE PC 3061 NE 11th Ave
Pompano Beach, FL 33064-6315
Broward County
40. NEPTUNE STEAK HOUSE AND LOUNGE 515 N Ridgewood Ave
Edgewater. FL 32132-1621
Volusia County
41. NEPTUNE'S INVESTMENT HOLDING C 5640 Taylor Rd Ste 5
Naples, FL 34109-2300
Collier County
42. NEPTUNE, INC. PO Box 5153
Hialeah, FL 33014-1153
Miami-Dade County
43. THE NEPTUNE 1515 Broadway
Fort Myers, FL 33901.3014
44. THE NEPTUNE CORPORATION 407 Lincoln Rd
Miami Beach, FL 33139-3020
Miami-Dade County
45. ZEHM BROS. CONSTRUCTION INC. 380 Rivertown Dr Ste 200
Woodbury, MN 55125-7744
Washington County
Business Associates - 5 business associates found
NO. NAME ADDRESS ROLE
1. IFS FUNDING CORP 801 W Madison St UCC
Waterloo, WI 53594-1379
Jefferson County
2. INTREPID FINANCIAL SERVICES 801 W Madison St UCC
Waterloo, WI 53594-1379
Jefferson County
3. LEHIGH CLAY PROPERTIES LTD 1110 Neptune Dr Real Property
Ruskin, FL 33570-2768
Hillsborough County
4. LEHIGH CLAY PROPERTIES LTD 608 5 19th St Real Property
West Des Moines, IA 50265-5505
Polk County
5. MERCANTILE BANK 28100 Us Highway 19 N UCC
Clearwater, FL 33761-2635
Pinellas County
Sources
All Sources 131 Source Documents
Real Property 93 Source Documents
Corporate Filings 3 Source Documents
UCC 5 Source Documents
Government Agency 1 Source Documents
Other Directories 16 Source Documents
Telco 8 Source Documents
Experian FEIN 3 Source Documents
For internal use only
SDNY_GM_000 59730
IDENTIAL
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Page 15
Experian 2 Source Documents
Key:
/A•High Risk Indicator. These symbols may prompt you to investigate further.
/ Moderate Risk Indicator. These symbols may prompt you to investigate further.
t General Information Indicator. These symbols inform you that additional information is provided.
AO The most recent telephone listing as reported by Electronic Directory Assistance.
4ifl Wireless Phone Indicator. These symbols indicate a cell phone number.
a) Residential Phone Indicator. These symbols indicate a residential phone number.
® Business Phone Indicator. These symbols indicate a business phone number.
(i) Shared Phone Indicator. These symbols indicate the phone number may be shared between wireless and landline
service.
(E) FAX Indicator. These symbols indicate a FAX number.
`%w Government Phone Indicator. These symbols indicate a government phone number.
Important: The Pubic Records and commercially available data sources used on reports have ernes. Data is sometimes entered poorly. processed
incorrectly and is generally not free horn defect. This system should not be relied upon as definitively accurate. Before relying co any data this system
supplies, a should be Independently verified. For Secretary of Stale documents, the follonl ng data is for information purposes only and is not an official
record. Codified copies may be obtained from that Individual MOWS Department of Stale.
Your DPPA Permissible Use is: Debt Recovery/Fraud
Your GLBA Permissible Use is: Legal Compliance
Copyright 02017 LerisNexis, a division of Reed Elsevier Inc. All Rights Reserved
2 OF 4 RECORD(S)
Comprehensive Business Report
Report Created:6-15-2017 6:30 PM EST I FOR INFORMATIONAL PURPOSES ONLY I Copyright O 2017 LexisNexis,
All rights reserved.
Search Terms - company(Neptune, LLC)tin(45-4093384) radius(15)
Executives - Current (0) IncorporatloniS0S (0) 0perationsISites (1) Sales (0)
Licenses (0) URLs (0) Real Property - Current (0) Real Property - Prior (0)
MVRs - Current (0) AAVRs - Prior (0) Watercraft - Current (0) Watercraft - Prior (0)
Aircraft - Current (0) Aircraft - Prior (0) Bankruptcy Firings (0) Judgments 8 Liens Filings (0)
UCC Filings (1) Executives - Prior (0) Registered Agents (0) Name Variations (1)
Possible Employees (0) Person Associates (0) Business Associates (1) TINs (0)
Possible Connected Parent Company (0) Industry Information (0)
Business (4)
View All Sources (2)
Business Summa
Name Address Phone
NEPTUNE, LLC 2700 S Ashland Ave
Green Bay, WI 54304-5303
I (No recent public filings on file)
Brown County
LexID Established TIN
0001-0353-4766 2006
(11 Years in Business)
At a Glance
Real Property 0 UCC Debtor 0
For internal use only
SDNY_GM_00059731
IDENTIAL
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Page 16
Personal Property 0 Bankruptcy 0
Secured Assets 0 Judgments/Liens 0
Executives 0 Foreclosure/Notice of Default 0
Name Variations -1 name variations found
NO. NAME
1. NEPTUNE, LLC
TINs - 0 TINs found
Business Profile
Executives: Current - 0 executive(s) found
Incorporation/SOS (0 active, 0 other)
OperatingLocations - Showing 1 location(s)
NO. ADDRESS METRO AREA PHONE
1. 2700 S Ashland Ave Green Bay. WI
Green Bay. WI 54304.5303
Brown County
Sales - 0 record(s) found
Parent Company - 0 record(s) found
Industry Information - no information found
Licenses - 0 licenses found
URLs - 0 URLs found
Bankruptcy (0 active, 0 closed)
Judgments/Liens (0 filings)
UCC Filings (1 debtor, 0 cred tor
NO. ROLE STATUS ORIG. ORIG. FILE JURISDICTI FILE TYPE
FILING NUMBER ON
DATE
1. Debtor Closed 01/06/2003 030000304209 WI Termination
Filing Office Information
SECRETARY OF STATE/UCC DIVISION
30 W Mifflin
Madison, WI 53702
Filing 2
Filing Number 040013506318
Filing Date: 08/24/2004
Filing Type: TERMINATION
Debtor 1
NEPTUNE. LLC
2700 S Ashland Ave
Green Bay, WI 54304-5303
For internal use only
SDNY_GM_00059732
IDENTIAL
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Secured Party Info 1
ASSOCIATED BANK, NATIONAL ASSOCIATION
200 N Adams St
Green Bay, WI 54301-5142
Filing 1
Filing Number 030000304209
Filing Date: 01/06/2003
Filing Type: INITIAL FILING
Expiration: 01/C6/2008
Debtor 1
NEPTUNE, LLC
2700 S Ashland Ave
Green Bay. WI 54304-5303
Secured Party Info 1
ASSOCIATED BANK, NATIONAL ASSOCIATION
200 N Adams St
Green Bay. WI 54301-5142
Collateral
FIXTURES ALL INCLUDING PROCEEDS AND PRODUCTS:COMPUTER
EQUIPMENT ALL INCLUDING PROCEEDS AND PRODUCTS;CHATTEL
PAPER ALL INCLUDING PROCEEDS AND PRODUCTS:EQUIPMENT ALL
INCLUDING PROCEEDS AND PRODUCTS:GENERAL INTANGIBLE(S)
ALL INCLUDING PROCEEDS AND PRODUCTS:INVENTORY ALL
INCLUDING PROCEEDS AND PRODUCTS;ACCOUNT(S) ALL
INCLUDING PROCEEDS AND PRODUCTS
Real Property (0 current, 0 prior)
Personal Property (0 current, 0 prior)
Associates
Executives: Prior - 0 prior executive(s) found
Registered Agents - 0 registered agent(s) found
Possible Employees - 0 current, 0 prior employees found
Person Associates - 0 other person associates found
Possible Connected Business - 4 businesses found
NO. NAME ADDRESS
1. NEPTUNE 928 Mason St
Rhinelander, WI 54501-2323
Oneida County
2. NEPTUNE LLC Car Villa Subdivision Lot 13
Sturgeon Bay, WI 54235
For internal use only
SDNY_GM_00059733
IDENTIAL
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Page 18
Door County
3. NEPTUNE LLC 2101 Lake Point Dr Apt 2
Madison, WI 53713-3705
4 NEPTUNE, LLC PO Box 11971
Green Bay, WI 54307-1971
Brown County
Business Associates -1 business associates found
NO. NAME ADDRESS ROLE
1. ASSOCIATED BANK, NATIONAL 200 N Adams St UCC
ASSOCIATION Green Bay, WI 54301-5142
Brown County
Sources
All Sources 2 Source Documents
UCC 1 Source Documents
Other Directories 1 Source Documents
Key:
SHigh Risk Indicator. These symbols may prompt you to investigate further.
I Moderate Risk Indicator. These symbols may prompt you to investigate further.
fah General Information Indicator. These symbols inform you that additional information is provided.
3 The most recent telephone listing as reported by Electronic Directory Assistance.
*Wireless Phone Indicator. These symbols indicate a cell phone number.
• Residential Phone Indicator. These symbols indicate a residential phone number.
0 Business Phone Indicator. These symbols indicate a business phone number.
(4) Shared Phone Indicator. These symbols indicate the phone number may be shared between wireless and landline
service.
FAX Indicator. These symbols indicate a FAX number.
\W Government Phone Indicator. These symbols indicate a government phone number.
Important: The Pubic Records and commercially available data sources used on reports have errors. Data is sometimes entered poaly, processed
incorrectly and is generally not free from defect. This system should not be relied upon as delnilively accurate. Before relying on any data this system
supplies. it should be independently verified. For Secretary of State documents. the (dittoing data is for information purposes only and is nol an official
record. Certified copies may be obtained from that individual state's Deportment of State.
Your °PPP Permissible Use is: Debt Recovery/Fraud
Your GLBA Permissible Use is: Legal Compliance
Copyright C 2017 LexisNexis, a division of Reed Elsevier Inc. All Rights Reserved.
3 OF 4 RECORD(S)
Comprehensive Business Report
Report Created:6-15-2017 6.30 PM EST I FOR INFORMATIONAL PURPOSES ONLY I Copyright 2017 LexisNexis,
All rights reserved.
Search Terms - company(Neptune, LLC) tin(45-4093384) radius(15)
Executives Current (0) Incorporation/SOS (1) OperationsiSites (1) Sales (0)
Licenses (0) URLs (0) Real Property - Current (0) Real Property - Prior (0)
MVRs - Current (0) MVRs Prior (0) Watercraft - Current (0) Watercraft - Pnor (0)
Aircraft - Current (0) Aircraft - Prior (0) Bankruptcy Filings (0) Judgments 8. Liens Filings (0)
For internal use only
SDNY_GM_000 59734
IDENTIAL
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Page 19
UCC Filings (1) Executives • Prior (0) Registered Agents (1) Name Variations (1)
Possible Employees (1) Person Associates (0) Business Associates (4) TINs (0)
Possible Connected Parent Company (0) Industry Information (0)
Business (6)
View All Sources (6)
Business Summary
Name Address Phone
NEPTUNE. LLC 2142 NW Robin Hood St
Corvallis, OR 97330-1153
Benton County
LexID Established TIN
0001.0357.4248 2011
(6 Years in Business)
At a Glance
Real Property 0 UCC Debtor 1
Personal Property 0 Bankruptcy 0
Secured Assets 0 Judgments/Liens 0
Executives 0 Foreclosure/Notice of Default 0
Name Variations -1 name variations found
NO. NAME
NEPTUNE, LLC
TINs - 0 TINs found
Business Profile
Executives: Current - 0 executive(s) found
Incorporation/SOS (0 active, 1 other)
NO. NAME FILING TYPE STATUS FILING FILING NO. STATE
DATE
1. NEPTUNE, LLC LIMITED LIABILITY INACTIVE 05/19/2011 77332097 OR
CORPORATION
Additional Details
Business Type: LIMITED LIABILITY CORPORATION
Business Status: INACTIVE
Filing Type: CURRENT ENTITY NAME
For Profit: Unknown
Foreign/Domestic: Domestic
Origin: State of OR
Filing History (most recent two years)
Filing Date Description
07/19/2013 ADMINISTRATIVE DISSOLUTION
OperatingLocations - Showing 1 location(s)
NO. ADDRESS METRO AREA PHONE
1. 2142 NW Robin Hood St Corvallis, OR
Corvallis, OR 97330-1153
Benton County
Sales - 0 record(s) found
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Parent Company - 0 record(s) found
Industry Information - no information found
Licenses - 0 licenses found
URLs - 0 URLs found
Bankruptcy (0 active, 0 closed)
Judgments/Liens (0 filings)
UCC Filings (1 debtor, 0 cred tor
NO. ROLE STATUS ORIG. ORIG. FILE JURISDICTI FILE TYPE
FILING NUMBER ON
DATE
1. Debtor Active 09/15/2011 89002575 OR Continuation
Filing Office Information
SECRETARY OF STATE/UCC DIVISION
143 State Capitol
Salem, OR 97310
Filing 2
Filing Number 89002575-1
Filing Date: 08/29/2016
Filing Type: CONTINUATION
Expiration: 09/15/2021
Debtor 1
BULJAM 2, LLC
2925 43rd Ave SE
Albany, OR 97322-6315
Secured Party Info 1
OSU FEDERAL CREDIT UNION
1980 NW 9th St
Corvallis. OR 97330-2179
Filing 1
Filing Number 89002575
Filing Date: 09/15/2011
Filing Type: INITIAL FILING
Expiration: 09/15/2016
Debtor 1
BULJAM 2. LLC
2925 43rd Ave SE
Albany, OR 97322-6315
Secured Party Info 1
OSU FEDERAL CREDIT UNION
1980 MN 9th St
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Corvallis. OR 97330-2179
Collateral
FIXTURES AND PROCEEDS:GENERAL INTANGIBLE(S) AND
PROCEEDS;ACCOUNT(S) AND PROCEEDS
Real Property (0 current, 0 prior)
Personal Property (0 current, 0 prior)
Associates
Executives: Prior - 0 prior executive(s) found
Registered Agents -1 registered agent(s) found
NO. NAME ADDRESS STATE DATE(S)
1 Cole. Darin F Oregon 05/19/2011 -
06/052017
Possible Employees -1 current, 0 prior employees found
NO. NAME ADDRESS STATUS DATE S
1. Cole, Darin F Current 05/10/2012 -
MANAGER 06/06/2016
Person Associates - 0 other person associates found
Possible Connected Business - 6 businesses found
NO NAME ADDRESS
1. NEPTUNE PO Box 18076
Portland. OR 97218-0076
Multnomah County
2. NEPTUNE 212 NE 20th
Portland, OR 97232
Multnomah County
3. NEPTUNE AND CO INC 3425 Chevy Chase St
Eugene. OR 97401-8011
Lane County
4. NEPTUNE LLC 2337 SE Taggart St
Portland, OR 97202-1268
Multnomah County
5. NEPTUNE LLC 621 SW Morrison St Ste 1440
Portland, OR 97205-3811
6. NEPTUNE LLC 7250 NE Avalon Dr
Corvallis, OR 97330-9431
Benton County
Business Associates - 4 business associates found
NO. NAME ADDRESS ROLE
1. BULJAM 2. LLC 2925 43rd Ave SE UCC
Albany, OR 97322.6315
Linn County
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2. CLPWARRENTON LLC PO Box 1583 UCC
Corvallis, OR 97339-1583
Benton County
3. OSU FEDERAL CREDIT UNION 1980 NW 9th St UCC
Corvallis. OR 97330-2179
Benton County
4. SUNSET RIVER LLC PO Box 1583 UCC
Corvallis. OR 97339-1583
Benton County
Sources
All Sources 6 Source Documents
Corporate Filings 1 Source Documents
UCC 1 Source Documents
Other Directories 3 Source Documents
Experian 1 Source Documents
Key:
AHigh Risk Indicator. These symbols may prompt you to investigate further.
Moderate Risk Indicator. These symbols may prompt you to investigate further.
t General Information Indicator. These symbols inform you that additional information is provided.
AO The most recent telephone listing as reported by Electronic Directory Assistance.
*Wireless Phone Indicator. These symbols indicate a cell phone number.
8
Residential Phone Indicator. These symbols indicate a residential phone number.
Business Phone Indicator. These symbols indicate a business phone number.
Shared Phone Indicator. These symbols indicate the phone number may be shared between wireless and landline
service.
V FAX Indicator. These symbols indicate a FAX number.
e21
Nwe Government Phone Indicator. These symbols indicate a government phone number.
Important: The Pubic Records and commercially available data sources used on reports have errors. Data is sometimes entered poorly, processed
incorrectly and is generally not free from defect. This system should not be relied upon as defnitively accurate. Before relying on any data this system
supplies. tl should be independently verified. For Secretary of Slate documents, the foliconlng data S for information purposes onty and is not an official
record. Certified copies may be obtained from that individual state's Department of State.
Your DPPA Permissible use is: Debt Recovery/Fraud
Your ELBA Permissible Use is: Legal Compliance
Copyright O2017 LoresNoxis. a division of Rood Eltorrior Inc All Rights Reserved
4 OF 4 RECORD(S)
Comprehensive Business Report
Report Created:6-15-2017 6:30 PM EST I FOR INFORMATIONAL PURPOSES ONLY I Copyright 2017 LexisNexis.
All rights reserved.
Search Terms - company(Neptune, LLC) tin(45-4093384) radius(15)
Executives - Current (0) Incorporation/SOS (1) 0peratIonsiSites (3) Sales (0)
Licenses (0) URLs (0) Real Property - Current (0) Real Property - Prior (0)
MVRs • Current (0) MVRs • Prior (0) Watercraft • Current (0) Watercraft - Prior (0)
Aircraft - Current (0) Aircraft - Prior (0) Bankruptcy Filings (0) Judgments .1 Liens Filings (0)
UCC Filings (0) Executives • Prior (1) Registered Agents (0) Name Variations (4)
Possible Employees (1) Person Associates (0) Business Associates (0) TINs (2)
For internal use only
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Possible Connected Parent Company (0) Industry Information (1)
Business (5)
View All Sources (11)
Business Summary
Name Address Phone
NEPTUNE. LLC PO Box 11971 920-822-8552
1 (No recent public filings on file) Green Bay, WI 54307.1971 / (Phone De-Listed in Eleoltonic
Brown County Diiecroly Assislance)
LexID Established TIN
0001-0305-1554 2001 39-2007435
(16 Years in Business)
At a Glance
Real Property 0 UCC Debtor 0
Personal Property 0 Bankruptcy 0
Secured Assets 0 Judgments/Liens 0
Executives 0 Foreclosure/Notice of Default 0
Name Variations - 4 name variations found
NO. NAME
1. NEPTUNE, LLC
2. GREAT LAKES COMMUNITY LLC
3. NEPTUNES CHARITABLE FOUNDATION INC
4. NEPTUNES NIMROD SKIN DIVING CLUB INC
TINs - 2 TINs found
NO. TIN NAME
1. 39-2007435 GREAT LAKES COMMUNITY LLC
NEPTUNE LLC
NEPTUNES NIMROD SKIN DIVING CLUB INC
2. 39-2029146 NEPTUNES CHARITABLE FOUNDATION INC
Business Profile
Executives: Current - 0 executive(s) found
Incorporation/SOS (0 active, 1 other)
NO. NAME FILING TYPE STATUS FILING FILING NO. STATE
DATE
1. NEPTUNE'S CORPORATION-NON WA 06/08/2001 N028538
CHARITABLE FOR PROFIT
FOUNDATION INC
Additional Details
Business Type: CORPORATION-NON FOR PROFIT
Business Status: N/A
Filing Type: SOS Filing
Expiration: 06/30/2002
For Profit: Unknown
Origin: Other Business Filing
OperatingLocations - Showing 3 location(s)
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NO. ADDRESS METRO AREA PHONE
1. PO Box 10893 Green Bay. WI
Green Bay, WI 54307-0893
Brown County
2. PO Box 11971 Green Bay, WI
Green Bay, WI 54307-1971
Brown County
3. 879 Woodstock Ln OCONTO COUNTY 920.822-8552
Pulaski, WI 54162-9696
I (Phone D-oListed in Electronic
Oconto County Directory Assistance)
Sales - 0 record(s) found
Parent Company - 0 record(s) found
Industry Information
SIC NAIC
8399 Social Services, Nec No NAIC information available
9999 Nonclassrfiable Establishments
Industry Description: CHARITABLE ORGANIZATION;PUBLIC FOUNDATIONS
Business Description:
Licenses - 0 licenses found
URLs - 0 URLs found
Bankruptcy (0 active, 0 closed)
Judgments/Liens (0 filings)
UCC Filings (0 debtor, 0 creditor)
Real Property (0 current, 0 prior)
Personal Property (0 current, 0 prior)
Associates
Executives. Prior -1 prior executives) found
NO NAME TITLE
1 Nighorn, Wayne OFFICER
Mb Associated with Other Companies
Registered Agents - 0 registered agent(s) found
Possible Employees - 0 current, 1 prior employees found
NO. NAME ADDRESS STATUS DATE(S)
1. Maurine. Tod K PO Box 11971 Prior
N/A Green Bay, WI 54307-1971 06/082001 -
07/052001
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Person Associates - 0 other person associates found
Possible Connected Business - 5 businesses found
NO. NAME ADDRESS
1. NEPTUNE 928 Mason St
Rhinelander, WI 54501-2323
Oneida County
2. NEPTUNE LLC Car Villa Subdivision Lot 13
Sturgeon Bay. WI 54235
Door County
3. NEPTUNE LLC 2101 Lake Point Dr Apt 2
Madison, WI 53713-3705
4. NEPTUNE'S CHARITABLE FOUNDATIO 126 Schmitz Dr
Forestville. WI 54213-9650
5. NEPTUNE, LLC 2700 S Ashland Ave
Green Bay, WI 54304-5303
Brown County
Business Associates - 0 business associates found
Sources
All Sources 11 Source Documents
Government Agency 5 Source Documents
Other Directories 4 Source Documents
Experian FEIN 2 Source Documents
Key:
AHigh Risk Indicator. These symbols may prompt you to investigate further.
.
/ Moderate Risk Indicator. These symbols may prompt you to investigate further.
1
ra. General Information Indicator. These symbols inform you that additional information is provided.
ftil The most recent telephone listing as reported by Electronic Directory Assistance.
*Wireless Phone Indicator. These symbols indicate a cell phone number.
OD Residential Phone Indicator. These symbols indicate a residential phone number.
Business Phone Indicator. These symbols indicate a business phone number.
V Shared Phone Indicator. These symbols indicate the phone number may be shared between wireless and landline
service.
FAX Indicator. These symbols indicate a FAX number.
Government Phone Indicator. These symbols indicate a government phone number.
Important: The Pubic Records and commercially available data sources used on reports have errors. Dale is sometimes eMered poorly. processed
incorrectly and is generally riot free from detect. This system should not be relied upon as defmtvely accurate. Before relying on any data this system
supplies. it should be independently verified. For Secretary of Stale documents. the following data is for information purposes only and is not an official
record. Certified copies may be obtained from that individual state's Deportment of State.
Your DPPA Permissible use is: Debt Recovery/Fraud
Your ekart Permissible Use is: Legal Comphance
Copyright O 2017 LexisNexis. a division of Reed Elsevier Inc. All Rights Reserved.
D& B:
For internal use only
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Worldbase, 03/25/2017, NEPTUNE. LLC
Copyright 2017 Dun & Bradstreet, Inc
dun&bradstreet
Worldbase
March 25, 2017
NEPTUNE, LLC
608 S 19TH ST
(registered address)
WEST DES MOINES, IA 502655505
USA
COUNTY: POLK
REGION: NORTH AMERICA
COMMUNICATIONS
CABLE TELEX: ONNNNANP
COMPANY IDENTIFIERS
DUNS: O7-481-6395
COMPANY INFORMATION
FOUNDED: 2O14
EMPLOYEES HERE: 6 - Estimate
EMPLOYEES TOTAL: 6 - Estimate
COMPANY TYPE: Private
EXECUTIVES
CEO:
AIXA MOORE, PRINCIPAL
DESCRIPTION
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Worldbase, 03/25/2017, NEPTUNE. LLC
UNDETERMINED
MARKET AND INDUSTRY
SIC CODES:
9999 - Nonclassified establishment
LOAD-DATE: May 6, 2017
LECAL RESULTS:
Court Cases:
Thomas J. Neary et al., Plaintiffs, v Arthur Burns et al.,
Defendants.
6290/2011
SUPREME COURT OF NEW YORK, KINGS COUNTY
44 Misc. 3d 280; 982 N.Y.S.2d 868; 2014 N.Y. Misc. LEXIS 1404;
2014 NY Slip Op 24083
March 28, 2014
PRIOR HISTORY: 363-367 Neptune Ave., LLC v Neary, 30 Misc 3d 779, 917 NYS2d 544,
2010 N.Y. Misc. LEXIS 6327 (2010)
CASE SUMMARY:
OVERVIEW: HOLDINGS: [1]-Plaintiffs' claims against a former building manager and a
limited liability company (LLC), arising from the sale of property and disputed distribution of
proceeds held by the LLC, survived challenge by a motion to dismiss because they had
standing to sue, as they were members of the LLC in their individual capacities because
they each held an ownership interest in the LLC; [2]-A holder of a beneficial interest, as a
beneficiary of the estate of a deceased LLC interest holder, had standing under Business
Corporation Law § 626(a), which was applicable to the LLC; [3]-Allegations of the former
managers conduct were sufficient to state claims under Limited Liability Company Law §§
508 and 409(a) because they asserted that he engaged in bad faith and intentional
misconduct.
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44 Misc. 3d 280, *; 982 N.Y.S.2d 868, **;
2014 N.Y. Misc. LEXIS 1404, ***; 2014 NY Slip Op 24083
OUTCOME: Motion to dismiss denied.
CORE TERMS: manager, cause of action, wrongfully withheld, net proceeds, tenant,
beneficial interest, owed, co-executor's, bad faith, indemnification, individual member, rent-
stabilized, apartments, vacate, fair share, sale proceeds, fiduciary duty, amend, ownership
interest, affirmative defenses, email, died, unilaterally, withholding, membership, standing
to sue, sale of real property, final adjudication, individually, withheld
LexisNexis(R) Headnotes
Civil Procedure> Pleading & Practice > Pleadings > Amended Pleadings > Leave of
Court
[HN1]A motion for leave to amend a complaint should be freely granted. absent prejudice
or surprise directly resulting from the delay in seeking leave, unless the proposed
amendment is palpably insufficient or patently devoid of merit. CPLR 3025(b).
Civil Procedure> Justiciability > Standing > General Overview
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections >
Motions to Dismiss
[HN2] CPLR 3211(a)(3) provides for dismissal of an action where the party asserting the
cause of action has not legal capacity to sue. Rule 3211(a)(3) also embraces the ground of
the lack of standing to sue, and this statute is, therefore, available to support a motion to
dismiss on this ground.
Business & Corporate Law > Corporations > Shareholders > Actions Against
Corporations > Standing > General Overview
Business & Corporate Law > Limited Liability Companies > Members & Other
Constituents
Civil Procedure> Justiciability > Standing > General Overview
[HN3] A beneficial interest has been recognized as conferring standing upon a party to
bring a derivative action on behalf of a corporation pursuant to Business Corporation Law
§ 626(a), which has been held applicable to limited liability companies.
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections >
Motions to Dismiss
Civil Procedure > Parties > Joinder > General Overview
[HN4] CPLR 3211(a)(10) provides for the granting of dismissal of a claim against a party
based upon the ground that "the court should not proceed in the absence of a person who
should be a party."
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections >
Failures to State Claims
Civil Procedure> Pleading & Practice > Pleadings > Rule Application &
Interpretation
[HN5] It is well settled that, as a general rule, on a motion to dismiss the complaint for
failure to state a cause of action under CPLR 3211(a)(7), the complaint must be construed
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44 Misc. 3d 280, *; 982 N.Y.S.2d 868, ";
2014 N.Y. Misc. LEXIS 1404, ***; 2014 NY Slip Op 24083
in the light most favorable to the plaintiff and the pleading is to be afforded a liberal
construction (CPLR 3026). The court must also accept the facts as alleged in the
complaint and submissions in opposition to the motion as true and accord the plaintiff the
benefit of every possible favorable inference. The court, in accepting the facts alleged in
the complaint to be true, must determine only whether the facts alleged fit within any
cognizable legal theory.
Business & Corporate Law > Limited Liability Companies > Members & Other
Constituents
[HN6] Limited Liability Company Law § 508 refers to limitations on distributions to
members.
Business & Corporate Law > Limited Liability Companies > Management Duties &
Liabilities
[HN7] See Limited Liability Company Law § 409(a).
Business & Corporate Law > Limited Liability Companies > Management Duties &
Liabilities
[HN8] See Limited Liability Company Law § 420.
HEADNOTES
Parties--Standing--Individual with Interest in Limited Liability Company as Part of
Group
1. Plaintiff, an individual who was listed in defendant limited liability company's operating
agreement as a member of a group that had a single percentage ownership and voting
interest, had standing to bring an action against the company and its manager based on
allegations that they wrongfully withheld from him his fair share of distributions of the net
proceeds of the sale of real property owned by the company. The group, consisting of
plaintiff and his two siblings, was referred to as such simply because their interest in the
premises derived from their mother. That fact did not negate plaintiffs status as an
individual member of the company with an ownership interest equal to one third of the
group's percentage interest. Plaintiff was listed as a member in a schedule of the operating
agreement, was an initial member of the company at the time of its formation and signed
the initial operating agreement. In addition, plaintiff had notified defendant manager that he
intended to vote his own membership interest separately from the group. Defendant
manager had also previously recognized plaintiff as an individual member in writings and
had issued separate checks to him in payment of distributions. Thus, plaintiff established
that he was an individual member of the company and entitled to maintain the action in his
own right without joinder of the other group members.
Parties--Standing--Individual with Interest in Limited Liability Company as Co-
Executor and Beneficiary of Estate
2. Plaintiff, an individual who was the co-executor and a beneficiary of his mother's estate,
which was listed as a member of defendant limited liability company in its operating
agreement, had standing to bring an action against the company and its manager based
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44 Misc. 3d 280, *; 982 N.Y.S.2d 868, **;
2014 N.Y. Misc. LEXIS 1404, ***; 2014 NY Slip Op 24083
on allegations that they wrongfully withheld from him his fair share of distributions of the
net proceeds of the sale of real property owned by the company. Plaintiff did not seek to
recover sums due to the estate, but instead sought to recover distributions owed to him
individually, which he claimed were wrongfully withheld because he resided as a rent-
stabilized tenant at a building owned by another company with the same members. The
claim belonged to plaintiff alone and was not shared by his brother, the other co-executor
and beneficiary of the estate, who was not a tenant at the premises. Moreover, plaintiff
was the transferee of one half of the interest held by his mother and was thus the holder of
a beneficial interest, which furnished a basis for plaintiffs individual claims against
defendants. Defendant manager had also previously recognized plaintiff as an individual
member in writings and had issued separate checks to him in payment of distributions.
Parties--Necessary Parties--Action against Limited Liability Company and its
Manager--Failure to Join Other Members of Company
3. Plaintiff limited liability company members' action alleging that defendants, the company
and its manager, wrongfully withheld from them their fair share of distributions of the net
proceeds of the sale of real property owned by the company was not subject to dismissal
based on plaintiffs' failure to join all other members of the company (CPLR 3211 [a] [10]).
Plaintiffs asserted direct claims to recover for distinct injuries that they individually
sustained by defendant managers alleged wrongful conduct, and were thus alleging
claims based upon the breach of duty owed directly to them, independent of any duty
owed to the company or any of its other members. Nor did plaintiffs seek to recover any
sums that might be due to the other members or for any damage to the company. Thus,
plaintiffs' claims did not require the joinder of the other company members.
Pleading--Sufficiency of Pleading--Action against Limited Liability Company and its
Manager--Wrongful Withholding of Distributions
4. Plaintiffs, individual members of a limited liability company, who alleged that defendant,
the company's manager, wrongfully withheld from them their fair share of distributions of
the net proceeds of the sale of real property owned by the company, sufficiently stated a
cause of action for breach of fiduciary duty. Specifically, plaintiffs contended, as
established by a letter from defendant, that defendant unilaterally and wrongfully withheld
sums from their individual distributions because of their refusal to vacate their rent-
stabilized apartments in premises owned by another limited liability company with the
same members and which sums were not withheld from other members. Under the
company's operating agreement, which referred to Limited Liability Company Law § 409
(a)'s good faith requirement in a managers performance of his or her duties, a company
manager is liable for "acts or omissions [that] were in bad faith or involved intentional
misconduct or a knowing violation of law." Given plaintiffs' assertions that defendant acted
"maliciously, wrongfully, and unlawfully," questions of fact existed as to the issue of
whether defendant acted in bad faith.
Indemnity--When Claim for Indemnification Available--Indemnification Provision in
Limited Liability Company Operating Agreement--Bad Faith Acts by Company
Manager
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Page 5
44 Misc. 3d 280, *; 982 N.Y.S.2d 868, ";
2014 N.Y. Misc. LEXIS 1404, ***; 2014 NY Slip Op 24083
5. In an action by plaintiffs, individual members of a limited liability company, alleging that
defendant, the company's manager, wrongfully withheld from them their fair share of
distributions of the net proceeds of the sale of real property owned by the company,
defendant's request for indemnification and reimbursement from defendant company
under the operating agreement was denied as premature. Under the terms of the operating
agreement, the company would "indemnify and hold harmless each Manager and the
Members from and against all claims and demands to the maximum extent permitted
under the" Limited Liability Company Law. Section 420 of the Limited Liability Company
Law, however, provides that "no indemnification may be made . . . if a judgment or other
final adjudication adverse to [a] . manager . . . establishes (a) that his or her acts were
committed in bad faith or were the result of active and deliberate dishonesty and were
material to the cause of action so adjudicated." Here, the issue of whether defendant
manager acted in bad faith in withholding funds from plaintiffs was awaiting final
adjudication.
rug
COUNSEL: Michele Forzley, North Bethesda, Maryland, for defendants.
Thomas Torto, New York City, for plaintiffs
JUDGES: Carolyn E. Demarest, J.
OPINION BY: Carolyn E. Demarest
OPINION
[1'282] ["`870] Carolyn E. Demarest, J.
In this action by plaintiffs Thomas J. Neary (Neary) and Salvatore Benevento (Benevento)
(collectively, plaintiffs) against defendants 2784 West 15th Street, LLC (2784 LLC) and
Arthur Burns (Burns), Burns moves for an order, pursuant to CPLR 3211, dismissing
plaintiffs' complaint in its entirety, and awarding him full reimbursement of his legal fees
and costs.
Background
Salvatore Judice (Mr. Judice) was the owner of two parcels of real property. One of these
parcels is located at 2776, 2778, and 2784 West 15th Street, in Brooklyn (block 8996, lots
89, 91, 92) (the 2784 premises), and the other parcel is located at 363-367 Neptune
Avenue, in Brooklyn (the Neptune Avenue premises). [1'283] The Neptune Avenue
premises consists of two buildings with six units in each of them. When Mr. Judice died in
1973, he left the 2784 premises and the Neptune Avenue premises to his five children, i.e.,
Grace Burns (Grace), Anna Neary (Anna), Lucy Judice (Lucy), John E. Judice (John), and
["..2]
Julia J. Benevento (Julia), and, by subsequent deeds, both of these premises were
conveyed to them as tenants in common. Plaintiffs Neary and Benevento have resided
virtually their entire lives in residential apartments in the building at 367 Neptune Avenue
within the Neptune Avenue premises as rent-stabilized tenants. Anna died in 1987, and
she left her estate to her husband, Thomas J. Neary, Sr. (Thomas), who died on August 2,
2004. Thomas' estate passed to plaintiff Thomas Neary, Salvatore Neary (Salvatore), and
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44 Misc. 3d 280, *; 982 N.Y.S.2d 868, ";
2014 N.Y. Misc. LEXIS 1404, "*; 2014 NY Slip Op 24083
Mary Ann Peraccio (Mary Ann), who thereby inherited Thomas' ownership interest both in
the 2784 premises and the Neptune Avenue premises.
In 2006, the family members that held interests in the 2784 premises and the Neptune
Avenue premises agreed to form two limited liability companies (LLCs), i.e., 2784 LLC and
363-367 Neptune Avenue, LLC (Neptune LLC), to which their respective interests in these
properties would be transferred, with Ray McRory, Esq. acting as their attorney. On
November 10, 2006, the operating agreement of 2784 LLC was executed by its initial
members, who were listed as: Grace (by Burns, as her attorney-in-fact), Julia (by
Benevento, as her attorney-in-fact), Neary, Salvatore, and Mary Ann. An almost identical
['..3]
operating agreement of Neptune LLC was also executed by these members on the
same date. The members conveyed their interests in the 2784 premises to 2784 LLC and
their interests in the Neptune Avenue premises to Neptune LLC. Pursuant to the operating
agreements, Burns was named the manager of both LLCs.
Thereafter, John died on March 28, 2007 and his estate passed to Carmel Salerno,
Patricia Judice, Joanne Judice Rafaella, and Salvatore Judice (Judice). The estate of John
conveyed its interests in the 2784 premises and the Neptune Avenue premises ['"871] to
the two LLCs. Lucy Judice died without having children, and her estate conveyed its
interest in the 2784 premises and the Neptune Avenue premises to the two LLCs. To
reflect these changes, on November 1, 2007, an amended and restated operating
agreement for 2784 LLC was executed by all of the initial members, and by the estate of
John (by Judice, as the executor), as a new member. Schedule A to 2784 LLC's operating
agreement (annexed as exhibit 2 to Bums' motion ["284] papers) lists the voting
percentage interests of its members as being: 44.8% for the estate of John, 18.4% for
Grace, 18.4% for Julia, and 18.4% for the Neary group, consisting [•""4] of three listed
members, i.e., Neary, Salvatore, and Mary Ann. At some time prior to 2011, Julia died, and
her estate passed to her two sons, Benevento and Anthony Benevento (Anthony), in equal
shares, pursuant to a will which also named them as co-executors.
In April 2009, members of Neptune LLC were requested to vote on a proposal to sell the
Neptune Avenue premises. Benevento (on behalf of the estate of Julia) and Neary voted
no to this proposal. By a letter dated April 21, 2009, the members of Neptune LLC were
informed that on April 20, 2009, 73.3% of the Neptune LLC's membership had voted in
favor of this proposal, and that, as a result, Burns was authorized to sell the Neptune
Avenue premises at the highest and best price possible and to take any necessary steps
to do so, including vacating all tenants from such premises.
In September 2009, Burns, on behalf of 2784 LLC, executed a purchase agreement to sell
the 2784 premises to M & A Realty Services, LLC for a sales price of $1,050,000. In 2010,
the 2784 premises were sold with the purchase price for this sale paid in cash and by a
purchase money mortgage. Prior to the sale, 2784 LLC's members signed a Certificate of
Members of 2784 ["""5] LLC Resolution to Sell Real Property (the certificate) in
accordance with section 3.4 of the operating agreement, which required that the manager
have prior written approval of a majority vote of all members in order to sell the 2784
premises. The certificate was signed by the estate of John (by Judice), Grace (by Bums,
as her attorney-in-fact), the estate of Julia (by Anthony), and the Neary group (by Mary
Ann, as the authorized representative), and reflected their respective interests in 2784 LLC
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of 44.8% for the estate of John, 18.4% for Grace, 18.4% for the estate of Julia, and 18.4%
collectively for the Neary group.
Using the funds obtained from this sale of the 2784 LLC premises, Burns, as the manager
of 2784 LLC, gave a mortgage and loan from it to Neptune LLC for $250,000 at five
percent interest with a mortgage on the Neptune Avenue premises to be paid when these
premises are sold. These monies were allegedly used to buy out the non-family tenants of
the Neptune Avenue premises so as to have them vacate their apartments there.
On August 13, 2010, an action was filed by Neptune LLC against Neary, Benevento,
Carmel Salerno (Carmel), and the estate of Julia (363-367 Neptune Avenue, LW v Neary,
Sup Ct, [-285] Kings County, index No. 9282/10, 30 Misc. 3d 779, 917 NYS2d 544)
["**6] (the Neptune Avenue action) for a judgment requiring Neary, Benevento, and
Carmel to vacate their apartments, requiring the estate of Julia to take action to remove
Neary, Benevento, and Carmel from such apartments, and awarding damages in the sum
of $108,000 against Neary, $216,000 against Benevento, and $324,000 against Carmel
due to their failure to vacate. In the Neptune Avenue action, Neary and Benevento
asserted that Burns had harassed them, refused to make repairs to the building, and
[""872] denied them essential services in an effort to make the building uninhabitable so
that they would be forced to vacate it. Neptune LLC, in that action, contended that it was
entitled to sell and vacate the Neptune Avenue premises pursuant to the operating
agreement for Neptune LLC. By a decision and order dated December 15, 2010, Justice
Mark I. Partnow denied a motion by Neptune LLC to require Neary, Benevento, and
Carmel to vacate the Neptune Avenue premises, finding that while Neptune LLC could
elect to dissolve and sell the premises pursuant to the majority vote of its members, it
rm
could not evict Neary, Benevento, and Carmel and was required to sell the Neptune
Avenue premises subject to their rent-stabilized leases.
In December 2010, Burns resigned as the manager of 2784 LLC, and Judice is now its
current manager. Burns claims that he and now Judice have been distributing 2784 LLC
funds from the sale of the 2784 premises pro rata to the members after enough cash is
accumulated and obligations paid, and that plaintiffs admit that they received distributions
as members. The Neptune Avenue premises have not yet been sold and Benevento and
Neary remain in occupancy as tenants there.
On March 18, 2011, plaintiffs filed the instant action, which initially named 2784 LLC and
Burns, along with McRory and McRory, PLLC and Raymond McRory, Esq. (collectively,
the McRory defendants), as defendants. On May 2, 2011, plaintiffs served a complaint,
and, on May 16, 2011, plaintiffs served an amended verified complaint as of right pursuant
to CPLR 3025 (a). Plaintiffs' amended complaint alleged that Burns, acting on behalf of
[`
2784 LLC and his 286] own personal interests, unilaterally and improperly diverted funds
belonging to 2784 LLC for purposes unrelated to it, including making payments in excess
of $200,000 to buy out the tenants who resided rill in the building at the Neptune
Avenue premises, and making payments of legal fees to the McRory defendants unrelated
to 2784 LLC. It further alleged that Bums, acting on behalf of 2784 LLC and his own
personal interests, unilaterally and improperly withheld from the net proceeds realized from
the sale of the 2784 premises distributions due to them because they had not vacated their
rent-stabilized apartments at the Neptune Avenue premises. Specifically, plaintiffs alleged
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that Bums withheld the sum of approximately $40,000 (as of the date of the amended
complaint) in partial distributions due to them from the sale of the 2784 premises. Plaintiffs
asserted that Burns, as the manager of 2784 LLC, owed them a fiduciary duty as members
of 2784 LLC.
Plaintiffs' amended complaint alleged three causes of action. Plaintiffs' first cause of action
against Burns and 2784 LLC sought an accounting of the affairs and monies of 2784 LLC.
Plaintiffs' second cause of action against Burns alleged that Burns diverted monies
belonging to 2784 LLC and withheld distributions due to them from the sale of the 2784
premises, which constituted a breach of his fiduciary duties to them. It sought a judgment
['..9] surcharging Burns in the amounts which are determined to be improperly diverted,
converted, and/or misappropriated. Plaintiffs' third cause of action against the McRory
defendants sought a judgment requiring them to disgorge all legal fees paid to them by
2784 LLC which were unrelated to 2784 LLC.
On September 15, 2011, Burns served an answer to plaintiffs' amended complaint, which
denied its material allegations and raised four affirmative defenses. Burns' first affirmative
defense alleged that plaintiffs' amended complaint fails to state a cause of action. Burns'
second affirmative ["873] defense alleged that the court should not proceed in the
absence of persons who should be parties. Burns' third affirmative defense alleged that
Benevento has no standing and is not a proper party to this action as he is a co-executor
acting without authority in relation to the estate of Julia, who was the member of 2784 LLC,
and that Neary has no standing and is not a proper party to this action as he is a member
of a group called the Neary group that is the member of 2784 LLC. Burns' third affirmative
defense further alleged that plaintiffs' amended complaint should be dismissed for failure
to join indispensable r""10] parties. Bums' fourth affirmative defense alleged that the
court lacks subject matter jurisdiction over plaintiffs' claims.
Following discussions with the attorneys for the McRory defendants and limited document
production by them, plaintiffs, by a stipulation of discontinuance dated January 27, 2012,
p287] discontinued this action as against the McRory defendants. On February 23, 2012,
Grace (who, as noted above, was Burns' mother and a member of 2784 LLC) died at the
age of 99 years.
By notice of motion dated March 6, 2013, plaintiffs moved for a default judgment, pursuant
to CPLR 3215, against 2784 LLC. On April 4, 2013, plaintiffs withdrew that motion and
extended the time for 2784 LLC to serve an answer to their amended complaint in
exchange for its production of bank statements for its checking account, which 2784 LLC
produced in or about the end of May 2013. 2784 LLC has not yet interposed an answer to
plaintiffs' amended complaint.
On June 28, 2013, Burns produced some documents in response to a February 25, 2013
notice to produce for discovery and inspection which was served by plaintiffs. Plaintiffs
assert that their review of 2784 LLC's bank statements and other documents produced
r.., in this action have revealed that they have direct claims against Burns and 2784
LLC for the alleged wrongful withholding from them of over $80,000 in distributions due to
them from the net sale proceeds from the 2784 premises.
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On September 11, 2013, plaintiffs moved for leave to serve an amended summons and
second amended verified complaint. Plaintiffs sought to amend the summons and first
amended complaint to delete the McRory defendants from the caption and to remove the
cause of action asserted as against them to reflect their voluntary discontinuance of all
claims against them. Plaintiffs further sought to amend the first amended complaint in
order to limit it to direct claims against 2784 LLC and Burns solely for wrongfully
withholding from them over $80,000 in distributions due to them from the net sale
proceeds from the 2784 premises.
Plaintiffs' second amended verified complaint (annexed as exhibit A to plaintiffs' motion
papers in motion sequence No. 2) alleges that Neary is a member of 2784 LLC, having a
6.133% ownership interest therein. It further alleges that Benevento has a 9.2% beneficial
interest in 2784 LLC through the estate of Julia, who was a member of 2784 LLC, r**121
having an 18.4% ownership interest therein, and that Benevento was and is the co-
executor of the estate of Julia and is entitled to 50% of Julia's estate.
Plaintiffs' second amended complaint sets forth that on January 20, 2010, 2784 LLC,
under the sole and exclusive management of Burns, sold the 2784 premises to M & A
r28Eq
Realty Services, LLC for the sum of $1,050,000. It alleges that as of January 22,
2010, the sum of $544,018.29 was available for distribution to 2784 LLC members from
the net proceeds of the sale of the 2784 premises, and that, as of March [*874] 9, 2010,
distributions of the net proceeds from the sale of the 2784 premises were made to 2784
LLC members, including distributions paid directly to Neary and Benevento, as members.
It asserts that Burns, in breach of independent fiduciary duties he owed to Neary and
Benevento in their own, individual capacities, unilaterally and wrongfully withheld from
them their fair share of distributions due to them from the net proceeds of this sale in
violation of the operating agreement and applicable Limited Liability Company Law.
Specifically, it alleges that Burns withheld from these sale proceeds the sum of $35,745.83
from Neary and the ["'13] sum of $44,831.58 from Benevento.
Plaintiffs' second amended complaint alleges three causes of action. Plaintiffs' first cause
of action against 2784 LLC alleges that 2784 LLC is in possession and control of the funds
wrongfully withheld from them by Burns from their share of distributions of the net sale
proceeds of the 2784 premises in violation of the operating agreement and applicable law,
and that they have been damaged in the total sum of $80,577.41, plus interest from March
9, 2010. Plaintiffs' second cause of action alleges a direct claim by Neary against Burns,
which asserts that Burns owed an independent fiduciary duty to Neary, as a member of
2784 LLC with a 6.133% ownership interest, that Burns wrongfully withheld the sum of
$35,745.83 from his share of distributions from the net proceeds of the sale of the 2784
premises, and that he is entitled to a judgment in this sum. Plaintiffs' third cause of action
alleges a direct claim by Benevento against Burns, which asserts that Burns owed an
independent fiduciary duty to Benevento as a member of 2784 LLC with a 9.2% ownership
interest and/or as the holder of a 9.2% beneficial interest in 2784 LLC through the estate of
[—la]
Julia, that Burns wrongfully withheld the sum of $44,831.58 from his share of
distributions from the net proceeds of the sale of the 2784 premises, and that he is entitled
to a judgment in this sum.
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On October 24, 2013, Burns filed his instant motion for an order dismissing plaintiffs'
amended verified complaint. In his motion papers, Bums opposed plaintiffs' motion to
amend and sought an order denying plaintiffs' motion: 2784 LLC has not [*289] submitted
any papers with respect to Burns' motion, and it took no position at oral argument.
' Subsequent to oral argument, the court received a purported "reply" to Burns motion to dismiss which included further
opposition to plaintiffs'proposed amendment to their amended complaint. These papers have been retected by the court and
have not been considered (see CPLR 2214 (Ial. (cit.
In support of their motion to amend, plaintiffs maintained that their proposed amendment
was meritorious since they were entitled to their full share of distributions from these sale
proceeds and that the withholding of over $80,000 from their distributions was wrongful
and improper. Moreover, no prejudice was demonstrated by Burns with respect to the
proposed amendment since it simply r..15] streamlines plaintiffs' amended complaint
and does not assert any new facts or causes of action against Bums. In addition, there
could be no prejudice to 2784 LLC since, as noted above, it has not as yet served an
answer in this action, and prejudice to warrant denial of leave to amend requires some
indication that the defendants were hindered in the preparation of their case or were
prevented from taking some measure in support of their position (see McGhee v Odell, 96
AD3d 449, 450, 946 NYS2d 134 [1st Dept 2012]; Kocourek v Booz Allen Hamilton Inc., 85
AD3d 502, 504, 925 NYS2d 51 ('"875] [1st Dept 2011]). Furthermore, while there was a
two-year delay by plaintiffs in seeking such leave, discovery is ongoing, and depositions
have not yet been held (see Rosicki, Rosicki & Assoc., P.C. v Cochems, 59 AD3d 512,
514, 873 NYS2d 184 [2d Dept 2009]).
Thus, since [HN1] a motion for leave to amend a complaint should be freely granted,
absent prejudice or surprise directly resulting from the delay in seeking leave, unless the
proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025
[b]; Aurora Loan Servs., LLC v Thomas, 70 AD3d 986. 987, 897 NYS2d 140 [2d Dept
2010]; Lucido v Mancuso, 49 AD3d 220, 222, 851 NYS2d 238 [2d Dept 2008], appeal
withdrawn ['..16] 12 NY3d 813, 908 NE2d 928, 881 NYS2d 20 [2009]), and, here, the
proposed amendment was not palpably insufficient or patently devoid of merit and there
was also no showing of prejudice or surprise resulting directly from plaintiffs' delay in
seeking leave, the court, at oral argument held on November 20, 2013, granted plaintiffs
motion for leave to file their second amended verified complaint. While Burns' motion was
originally directed as against plaintiffs' first amended complaint, since the court has
granted plaintiffs' motion to amend their first amended complaint during the pendency of
Burns' motion, the court will address this motion as against plaintiffs' second amended
complaint (see 49 W. 12 Tenants Corp. v Seidenberg, 6 AD3d 243, 243, 774 NYS2d 339
[1st Dept 2004];Livadiotakis v. Tzitzikalakis, ["29O] 302 AD2d 369, 370, 753 NYS2d 898
[2d Dept 2003]; Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 38, 675 NYS2d 14
[1st Dept 1998]).
Discussion
In support of his instant motion, Bums argues that this action must be dismissed based
upon plaintiffs' lack of standing to sue. [FIN2] CPLR 3211 (a) (3) provides for dismissal of
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an action where "the party asserting the cause of action has not legal capacity to sue."
[min
CPLR 3211(a) (3) also embraces the ground of the lack of standing to sue, and
this statute is, therefore, available to support a motion to dismiss on this ground (see Hecht
v Andover Assocs. Mgt. Corp., 114 AD3d 638, 979 NYS2d 650, 2014 NY Slip Op 632 [2d
Dept 2014]).
Burns, in arguing that plaintiffs lack standing to sue, relies upon the third affirmative
defense in his answer to the first amended complaint and contends that plaintiffs are not
proper parties and lack standing to sue 2784 LLC and him, as its former manager,
because they are allegedly not members of 2784 LLC in their individual capacities.
Burns argues that Neary is not a proper party and lacks standing to sue because the
member of 2784 LLC is the Neary group, as opposed to Neary. He points to schedule A of
the operating agreement (exhibit 2 to his motion papers), which lists the Neary group as
consisting of three members with an 18.4% voting percentage interest, and the footnote to
that schedule which states that the three Nearys (Neary, Salvatore, and Mary Ann) have
each contributed 100% of their respective undivided interest as tenants in common in the
2784 premises to 2784 LLC, and that "[t]he Neary Group owns an 18.4% Member Interest
as a group," and "has appointed Mary Ann . . . to represent [***18] them in voting their
total 18.4% Voting Percentage Interest until otherwise notified in writing by them."
[1] Burns' argument must be rejected. The membership interest of the Nearys was referred
to as the Neary group simply because their interest in the 2784 premises derived from
Anna and thereafter passed to Neary and his two siblings, which ["876] formed the Neary
group. The mere fact that Neary permitted Mary Ann to vote the collective 18.4% of the
Neary group does not negate Neary's status as an individual member of 2784 LLC in his
own individual right with a 6.133% (one third of 18.4%) ownership interest. Indeed,
schedule A of the operating agreement lists Neary separately as a "Member' and sets
forth his residence, address and Social Security number. In fact, Weary was an initial
member of 2784 LLC at the time of its formation [*291] in 2006, and he signed the initial
operating agreement and the amended and restated operating agreement as an "Initial
Member" (see exhibit A to plaintiffs' opposition papers). Additionally, Neary, by an email
dated February 24, 2010 (exhibit C to plaintiffs' opposition papers), gave Bums written
notice of his intent to vote his own 6.133% membership interest separately. (***191 Thus,
Neary has established that he is, in fact, an individual member of 2784 LLC and entitled to
maintain this action in his own right without the joinder of the other members of the Neary
group.
Burns further asserts that Benevento is not a member of 2784 LLC, but, rather, the
member is the estate of Julia. He argues that Benevento cannot claim a payment allegedly
due to the estate of Julia. He states that while Benevento is a co-executor of the estate of
Julia, he is not acting on behalf of the estate with his brother, Anthony, who is the co-
executor.
[2] This argument by Burns is unavailing since Benevento is not making a claim on behalf
of the estate of Julia, but in his own right as the holder of a beneficial interest of 9.2% of
2784 LLC. Benevento does not seek to recover sums due to the estate of Julia. Rather, he
seeks to recover distributions from the sale of the 2784 premises owed to him individually
which, he claims, Burns wrongfully withheld from him by making deductions to his share of
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such sale proceeds because he resides as a rent-stabilized tenant at the Neptune Avenue
premises. This claim belongs to Benevento and is not shared by Anthony, the other
beneficiary and the [""20] co-executor of the estate of Julia, who is not a tenant at the
Neptune Avenue premises and received his full share of such proceeds without any
deductions. Thus, Benevento, and not the estate of Julia, is the real party in interest in this
litigation.
Moreover, it is undisputed that Benevento is the transferee of one half of the interest held
by Julia, and, thus, the holder of a "beneficial interest" in 2784 LLC. Such [HN3] a
beneficial interest has been recognized as conferring standing upon a party to bring a
derivative action on behalf of a corporation pursuant to Business Corporation Law § 626
(a) (see Bernfeld v Kurilenko, 91 AD3d 893, 894, 937 NYS2d 314 [2d Dept 2012]; Shui
Kam Chan v Louis, 303 AD2d 151, 152, 756 NYS2d 534 [1st Dept 2003]), which has been
held applicable to limited liability companies (see Tzolis v Wolff, 10 NY3d 100, 121, 884
NE2d 1005, 855 NYS2d 6 [2008]). While this is not a derivative action, this beneficial
interest likewise furnishes a basis for Benevento's individual claims against 2784 LLC and
Burns, and the fact that [.192] Benevento obtained his interest through the estate of Julia
does not deprive him of standing in this action (see Bernfeld, 91 AD3d at 894).
r..211
Furthermore, Burns previously recognized and acknowledged both Neary and
Benevento as members of 2784 LLC. An email by Bums dated February 9, 2009 (exhibit B
to plaintiffs' opposition papers) stated that "the three Nearys . are direct owners" of 2784
LLC. An email by Burns dated February 22, 2010 (exhibit 6 to Burns' motion papers)
r8771
regarding distributions sent to Neary and Benevento inquired as to "[h]ow do the
Nearys want their checks" and whether they wanted "[o]ne to Mary Ann or 1/3 to each
sib[ling]." Burns, in this email, further inquired as to how he should distribute Julia's funds,
noting that the checks would have to be made out to her estate, and he asked whether he
should issue two checks, or one each with the co-executors name also on the check. He
additionally stated, in this email, that he "only wanted] to hear from members," that "[t]he
Nearys should elect if they want to vote as a group or individually," and that the
Beneventos will have to "decide themselves." By an email dated February 24, 2010
(exhibit C to plaintiffs' opposition papers), Neary responded that he wanted the check
issued to him.
Significantly, plaintiffs point out that Bums has already issued separate checks to them in
payment of their distributions of [""*22] the net sale proceeds. and that they are now
simply complaining that they did not receive the full amount due to them. Burns, in
paragraph 17 of his attorney's affirmation in support of his motion, admits that plaintiffs
have "received distributions." Thus, by such distributions, Burns has acknowledged
Neary's membership interest and Benevento's beneficial membership in 2784 LLC and
their rights to receive such distributions.
Notably, in the December 15, 2010 decision and order in the Neptune Avenue action,
Justice Partnow previously acknowledged that Neary is a member of Neptune LLC and
that Benevento has a beneficial interest in Neptune LLC. Burns, in his attorney's
affirmation, has admitted that both Neptune LLC and 2784 LLC "have identical members
with only a slight difference in percentage ownership." Therefore, it follows that Neary is a
member of 2784 LLC in his own right in the same way that he is a member of Neptune
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LLC, and that Benevento holds a beneficial interest in 2784 LLC in his own right in the
same way that he holds a beneficial interest in Neptune LLC.
p293] Thus, Neary and Benevento do not lack standing to maintain this action. Dismissal
of this action, pursuant to CPLR 3211 (a) (3), ["""23] must, therefore, be denied.
Burns further contends that plaintiffs have failed to join the other members of 2784 LLC
and that, therefore, this action must be dismissed, pursuant to [HN4] CPLR 3211 (a) (10),
which provides for the granting of dismissal of a claim against a party based upon the
ground that "the court should not proceed in the absence of a person who should be a
party."
[3] This contention by Burns is devoid of merit since plaintiffs' second amended complaint
asserts direct claims by plaintiffs to recover for distinct injuries that they individually
sustained by Burns' alleged wrongful withholding of their proportionate share of
distributions of the net proceeds from the sale of the 2784 premises. Plaintiffs are thus
alleging claims based upon the breach of a duty owed directly to them, independent of any
duty owed to 2784 LLC or any of its other members (see generally Abrams v Donati, 66
NY2d 951, 953, 489 NE2d 751, 498 NYS2d 782 [1985], rearg denied 67 NY2d 758, 490
NE2d 1234, 500 NYS2d 1028 [1986];Behrens v Metropolitan Opera Assn., Inc., 18 AD3d
47, 50, 794 NYS2d 301 [1st Dept 2005]; Lawrence Ins. Group, Inc. v KPMG Peat Marwick
LLP, 5 AD3d 918, 919, 773 NYS2d 164 [3d Dept 2004]). Plaintiffs do not seek to recover
any sums that may be due to the other members of r'24] 2784 LLC or for any damage
to 2784 LLC. Plaintiffs' claims relate only to their own direct claims as against Burns and
2784 LLC and, as a result, do not require the joinder of the other members of 2784 LLC.
Consequently, ['"878] dismissal of plaintiffs' action for failure to join necessary parties
must be denied.
Burns also contends that this action must be dismissed, pursuant to CPLR 3211 (a) (7),
based upon plaintiffs' failure to state a cause of action. [HN5] "It is well settled that, as a
general rule, on a motion to dismiss the complaint for failure to state a cause of action
under CPLR 3211 (a) (7), the complaint must be construed in the light most favorable to
the plaintiff' (Gruen v County of Suffolk, 187 AD2d 560, 562, 590 NYS2d 217 [2d Dept
1992]; see also Rosen v Watermill Dev. Corp., 1 AD3d 424, 425, 768 NYS2d 474 [2d Dept
2003)), and the pleading is to be afforded a liberal construction (CPLR 3026). The court
must also accept the facts as alleged in the complaint and submissions in opposition to the
motion as true and accord the plaintiff "the benefit of every possible favorable inference"
(Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414, 754 NE2d 184, 729 NYS2d
425 [2001]; see also Thomas v LaSalle Bank N.A., 79 AD3d 1015, 1017, 913 NYS2d 742
[2d Dept 2010]). r25] The court, in accepting the facts p294] alleged in the complaint
to be true, must " 'determine only whether the facts alleged fit within any cognizable legal
theory " (Ruffin° v New York City Tr. Auth., 55 AD3d 817, 818, 865 NYS2d 667 [2d Dept
2008], quoting Moms v Morris, 306 AD2d 449, 451, 763 NYS2d 622 [2d Dept 2003]; see
also Hurrell-Harring v State of New York, 15 NY3d 8, 20, 930 NE2d 217, 904 NYS2d 296
[2010]; Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571, 841 NE2d 742, 807
NYS2d 583 [2005]).
Burns argues that plaintiffs have failed to state a cause of action because there was no
wrongdoing by him. Burns' attorney asserts that Bums sent emails discussing at length
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44 Misc. 3d 280, *; 982 N.Y.S.2d 868, ";
2014 N.Y. Misc. LEXIS 1404, ***; 2014 NY Slip Op 24083
that 2784 LLC would give a loan to Neptune LLC and that this loan was authorized by the
members. She further asserts that there is no damage to any member because the
$250,000 loaned by 2784 LLC is earning interest at five percent and is secured by the real
estate, and that when the Neptune Avenue premises are sold, the mortgage will be paid to
2784 LLC with interest and all of the members of both 2784 LLC and Neptune LLC will
receive their pro rata shares. She also states that plaintiffs received payments at the same
time and "in pro rata amounts as the other members."
The second amended ["**26] complaint, however, does not challenge the $250,000 loan
made by 2784 LLC to Neptune LLC and does not allege that the sale of the 2784
premises was unauthorized. Rather, plaintiffs assert that Bums wrongfully deprived them
of their fair share of the distributions from the net proceeds of the sale of these premises.
Specifically, plaintiffs contend that Burns unilaterally and wrongfully withheld sums from
their individual distributions because of their refusal to vacate their rent-stabilized
apartments at the Neptune Avenue premises. Plaintiffs have annexed a letter by Bums
dated March 9, 2010 (exhibit E to plaintiffs' opposition papers), which establishes that
Burns, referring to Benevento's and Neary's apartments at the Neptune Avenue premises,
unilaterally deducted from their individual distributions of the net sale proceeds of the 2784
premises that were issued by 2784 LLC in March 2010, amounts for "disparate benefits"
that Burns claims they received by virtue of their rent-stabilized tenancies at the Neptune
Avenue premises. This letter shows that in contrast to the distributions to plaintiffs, these
["- 27]
sums were not deducted from the distributions received by the other two Neary
members (Salvatore and Mary Ann), Anthony (Benevento's brother), ["879] or Grace,
who were paid their distributions in full.
295] Burns further argues that he should be absolved from liability pursuant to article 4.5
of the operating agreement (exhibit 7 to Burns' motion papers), which provides as follows:
"A Manager shall not be personally liable to the Company or its Members for damages for any breach of duty as a
Manager, except for any matter In respect to which such Manager shall be liable by reason that, in addition to any and
all other requirements for such liability. there shall have been a judgment or other final adjudication adverse to such
Manager that establshes that such Manager's acts or omissions were in bad faith or Involved intentional misconduct or
a knowing violation of law or that such Manager personally gained in fact a financial profit or other advantage to which
such Manager was not legally entitled or that with respect to a distnbution the subject of Section 508 of the [Limited
Liability Company Law]. such Manager's acts were not performed in accordance with Section 409 of the [Limited
Liability Company Law]"
[HN6] Limited Liability Company Law § 508 refers to limitations ["**28] on distributions to
members. Limited Liability Company Law § 409 (a) provides that [HN7] "[a] manager shall
perform his or her duties as a manager, including his or her duties as a member of any
class of managers, in good faith and with that degree of care that an ordinarily prudent
person in a like position would use under similar circumstances."
[4] Bums contends that he did not act in bad faith or engage in intentional misconduct.
However, plaintiffs' allegations, which must be deemed true for purposes of this motion,
sufficiently allege such bad faith, asserting that Burns acted "maliciously, wrongfully, and
unlawfully," and in breach of his fiduciary duties. Thus, despite Bums' attomey's argument
that Burns acted properly, questions of fact are raised as to this issue.
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Burns additionally argues that he is entitled to be indemnified and reimbursed for the
expenses which he has incurred related to this litigation pursuant to article 4.7 of the
operating agreement (exhibit 7 to Bums' motion papers), which provides that "[t]he
Company shall indemnify and hold harmless each Manager and the Members from and
against all claims and demands to the maximum extent permitted under the [Limited
Liability ["""29] Company Law]."
[5] Bums requests that his motion "serve as a cross claim" against 2784 LLC for his legal
fees and indemnification [*296] pursuant to article 4.7 of the operating agreement. Such a
request is procedurally improper. Burns has not yet interposed an answer to plaintiffs'
second amended complaint nor did he include a cross claim against 2784 LLC for
indemnification in his answer to plaintiffs' first amended complaint. Moreover, there has
been no final adjudication on the issue of whether Burns breathed his duties under the
operating agreement, and such a finding would defeat his claim for indemnification
pursuant to Limited Liability Company Law § 420, which provides as follows:
(HN8) 'Subject to the standards and restrictions, if any, set forth in its operating agreement, a limited liability company
may, and shall have the power to, Indemnify and hold harmless, and advance expenses to, any member, manager or
other person, or any testator or intestate of such member, manager or other person, from and against any and all
claims and demands whatsoever; provided, however, that no indemnification may be made to or on behalf of any
member, manager or other person if a (" 8ab) judgment or other final ("•30l adjudication adverse to such member.
manager or other person establishes (a) that his or her acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so adjudicated or (b) Mat he or she personally gained in
fact a financial profit or other advantage to which he or she was not legally entitled."
Consequently, Burns' request for indemnification and reimbursement under the operating
agreement must be denied as premature (see Limited Liability Company Law § 420).
Conclusion
Accordingly, Burns' motion is denied in its entirety.
THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY* **
CIVIL SUITS FROM NEW JERSEY
SUPERIOR COURT
Defendant: GEORGE GROSSOS; NEPTUNE LLC
Defendant Address: GEORGE GROSSOS
Plaintiff: CHOI KYUNGKON
Number: L00568215
Vendor Number: SC-56820000-2015
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CIVIL SUITS FROM NEW JERSEYSUPERIOR COURT
Date: 6/16/2015
Filing Type: CIVIL SUIT
Case Type: CIVIL NEW FILING
County Filed: BERGEN
Place Filed: NEW JERSEY SUPERIOR COURT, LAW DIVISION, SPECIAL CIVIL PART
Description: SUITS UNDER $ 7,500 00
* • • THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY * * *
CIVIL SUITS FROM MARYLAND
MARYLAND DISTRICT COURT
Defendant: DANIELLE LONGCHAMPS; CHECKER CAB ASSOCIATION INC; M T A;
LINDA M BOWMAN; GOODS DEBORAH; EMERGE INC, DEL WOOD KITCHENS;
CANDIS MOLDEN; LATOYA M BRANCH; IMECKA T JONES; SHELLEY NELSON; TIKIA
B D WRIGHT; MARK POWELL
Defendant Address: DANIELLE LONGCHAMPS
DANIELLE LONGCHAMPS
DANIELLE LONGCHAMPS
DANIELLE LONGCHAMPS
DANIELLE LONGCHAMPS
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CIVIL SUITS FROM MARYLANDMARYLAND DISTRICT COURT
DANIELLE LONGCHAMPS
DANIELLE LONGCHAMPS
DANIELLE LONGCHAMPS
DANIELLE LONGCHAMPS
DANIELLE LONGCHAMPS
DANIELLE LONGCHAMPS
DANIELLE LONGCHAMPS
DANIELLE LONGCHAMPS
Plaintiff: KNIGHT DRAKE; JOHNSON AUDWIN; ALIEL MISHAEL ELOHIM PARKER
KIM, MIDLAND FUNDING LLC; FIELDS CARL; CHESAPEAKE PLYWOOD LLC;
HUGHLEY GREGORY, RENT A CENTER; BAIL FINANCE INC, NEPTUNE LLC BY
SINGER REALTY INC, AM PROPERTY MANAGEMENT LLC
Number: 010100053252015
Vendor Number: DS-10100053-2015-DI
Date: 3/16/2015
Filing Type: CIVIL SUIT
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CIVIL SUITS FROM MARYLANDMARYLAND DISTRICT COURT
Case Type: CIVIL NEW FILING
County Filed: BALT CITY
Place Filed: MARYLAND DISTRICT COURT
Description: CIVIL SUITS
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